McCoy v. Spidle et al

Filing 142

ORDER DENYING 99 Motion for Summary Judgment, Except In the Part Granted by the Court on May 6, 2009; ORDER DENYING 125 134 135 136 140 All Other Pending Motions; ORDER That the Court Will Rule on Defendants' Request That This Court Reaffirm Its Grant of Summary Judgment Pending Supplemental Briefing; ORDER DIRECTING Defendants to File a Response to Plaintiff's Sur-Reply Within 20 Days of the Filing Date of This Order; ORDER DIRECTING Clerk to Refer Case to a Settlement Con ference; ORDER DIRECTING Defendants to Provide a Status Report Regarding Settlement Conference, signed by District Judge David C. Bury on 9/30/2009. Defendants' Response to Plaintiff's Sur-Reply due by 10/21/2009. (cc: Sue Jane Younger via e-mail). (Jessen, A)

1 2 3 4 5 6 7 8 9 10 11 R . Spidle, et al., 12 Defendants. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA F R E S N O DIVISION D a v o n E. McCoy, Plaintiff, vs. ) ) ) ) ) ) ) ) ) ) ) ) C a s e No. 1:07-CV-198-DCB ORDER

O n May 6, 2009, this Court issued an Order, granting in part the Defendants' M o tio n for Summary Judgment and granted Plaintiff one last extension of time to file a R e sp o n s e to all other parts of the Defendants' Motion for Summary Judgment. On May 1 3 , 2009, Plaintiff filed his Response. (Documents 125-128: Opposition.) On May 28, 2009, Plaintiff renewed his request for sanctions against Defendants, w h ich the Court had denied in the May 6, 2009, Order. (Document 134: Motion to R e n e w Motion for Sanctions.) Plaintiff also asked the Court to return an original d o c u m e n t attached to his Reply in support of his Motion for Production of the deposition tra n s c rip t. (Document 135: Motion for Substitution of Exhibit.) 1 O n May 29, the Plaintiff filed a Motion to Strike the Defendants' Reply because it w a s filed on the same day the Reply was due to be filed with the Court. (Document 136: M o tio n to Strike and Objections.)

T h e only copy of this brief is electronic.

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O n June 9, 2009, the Defendants filed a Reply and supplemented their Statement o f Facts. On July 2, 2009, Plaintiff filed a motion seeking leave to file a supplemental b rie f and exhibits, a.k.a., a Sur-Reply. (Document 140: Motion to Request Leave to R e sp o n d to Defendants, which this Court treats as a Sur-Reply.) The Defendants object, a n d alternatively seek to respond to Plaintiff's supplemental brief if it is allowed by the C o u rt . The Court will allow the filing of document 140 as a Sur-Reply to the extent the P lain tiff asserts he is serving a life sentence, which would arguably invalidate this Court's a p p lic a tio n of Edwards v. Balisok 2 to bar his section 1983 due process claim challenging h is rules violation (RV) hearing and conviction. The Defendants may file a Sur-SurR e p l y, which shall be limited to supporting their motion for summary judgment as a m atter of law under Balisok. T h e Court denies all the pending motions, including the parts of the Defendants' M o tio n for Summary Judgment which remained pending after the Court's ruling on May 6 , 2009. The Court finds that a settlement conference may be of assistance to the parties

I n its Order issued on May 6, 2009, the Court granted summary judgment for D e f en d a n ts on Plaintiff's due process claim related to the rules violation (RV) hearing, e x p la in in g that, as a matter of law, it was barred by the favorable termination rule. Edwards v . Balisok, 502 U.S. 641 (1997). The Court ruled as a matter of law, assuming if the Plaintiff p r e v a ile d on his due process claim it would necessarily require a return of good time credits, w h ich would result in a sentence reduction. The Court noted that if it erred in this c o n c lu sio n , it would reassess its ruling. (Order (document 123) at p.12 n. 2.) Defendants a ss e rt that the Court should affirm its summary judgment for Defendants based on Balisok b e c au s e Plaintiff admits he lost 180 days of good time credit. Plaintiff, however, asserts he is serving a life sentence. (Sur-Reply at 2.) This Court ruled as a matter of law in respect to Bolisok. It did not make any findings that factually Plaintiff's circumstances fit within the c o n f in e s of Bolisok, but assumed the Defendants would not urge it, if factually the bar was n o t appropriate. The state bears the burden to establish that if Plaintiff prevails here on his d u e process claim, it would necessarily shorten the length of his confinement. Ramirez v. G a l a z a , 334 F.3d 850, 859 (9 th Cir. 2003). The Court will allow the Defendants to respond to Plaintiff's Sur-Reply. -2-

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a n d refers the case to the Clerk of the Court for assignment to a settlement judge. In the e v e n t the case does not settle, the case shall be set for trial. B a c k g ro u n d T h e Plaintiff alleged a claim for damages under 42 U.S.C. § 1983 against D e f en d a n ts Spidle, Doyle, Perry, Dreith, Dangler, Watson, Sumaya, Allen, Stockman, B u c k le y and Garza violated his due process rights in a rules violation hearing on June 15, 2 0 0 5 , which resulted in his conviction for conspiracy to murder police officers and his c o n f in e m e n t in a security housing unit (SHU). Plaintiff alleged that Defendant Dangler r e ta lia te d against him by reissuing a decision to deny his appeal of the RV after it had first b e e n granted. Plaintiff alleges that while housed at SHU he suffered a seizure, passed o u t, fell and dislocated his shoulder. Thereafter, Defendants Tomlin, Kee, Garcia, R u b a c a lab a , Poblete, Reyes, Reynoso, Campos, Gonzales, and Morales, were deliberately in d if f ere n t to his medical needs in violation of the Eighth Amendment to the United S ta te s Constitution. "In its Order issued on May 6, 2009, the Court granted summary judgment for D e f en d a n ts on Plaintiff's due process claim related to the rules violation hearing, e x p la in in g that, as a matter of law, his claim under section 1983 was barred by the f a v o ra b le termination rule. Edwards v. Balisok, 502 U.S. 641 (1997)." Supra n.2. The P lain tiff 's claims remain against Defendant Dangler for retaliation and for deliberate in d if f e r e n c e against Tomlin, Kee, Garcia, Rubacalaba, Poblete, Reyes, Reynoso, Campos, G o n z a le s , and Morales. Retaliation Claim Against Defendant Dangler T h e due process clause of the Fourteenth Amendment creates "no legitimate claim o f entitlement to a [prison] grievance procedure." Mann v. Adams, 855 F.2d 639, 640 (9 th Cir.1988). Even the failure of officials to properly implement an administrative a p p e a ls process within the prison system does not raise constitutional concerns. Id.; R a m ir e z v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). There is, however, a First

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A m e n d m e n t right of access to the courts, which hinges on his ability to access the prison g rie v a n c e system, Bradley v. Hall, 64 F.3d 1276, 1279 (9 th Cir. 1995); see also, Rhodes v. R o b in s o n , 408 F.3d 559, 567-68 (9 th Cir. 2005) (First Amendment right to file prison g riev an ce s and pursue civil rights litigation in the courts). T o prevail here, Plaintiff must prove that Defendant Dangler retaliated against him f o r exercising his First Amendment right to file prison grievances and to pursue civil rig h ts litigation in the courts. Plaintiff must show: 1) that Defendant Dangler took some a d v e rs e action against him; 2) because Plaintiff exercised a constitutional right; 3) D an g ler's action chilled Plaintiff's exercise of his constitutional rights, and 4) Dangler's a c tio n did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d at 5 6 7 - 6 8 . Plaintiff must establish a nexus between Dangler's actions and Plaintiff's p ro te c te d activity. Huskey v. City of San Jose, 204 F.3d 893, 899 (9 th Cir. 2000). D e f en d a n t Dangler attests that from May 2, 2005, to February 6, 2007, he was one o f two appeals coordinators at High Desert State Prison (HDSP). The appeals c o o r d in a t o r is responsible for screening inmate appeals for compliance with regulations, c o o rd in a tin g their processing, and maintaining the appeal records. If an appeal is s c re e n ed out, it is returned to the inmate without processing. The appeals coordinator d o e s not keep a record of it. A review of grievances/appeals submitted by the Plaintiff at H D S P between May 2, 2005, and February 6, 2007, reflects that only one g riev an ce /ap p ea l was not screened out. Appeal HDSP-05-03578, concerning McCoy's Ju ly 17, 2005, appeal of the RV finding him guilty of conspiracy to murder peace officers w a s not screened out. All others were terminated by screening. (Document 138: S u p p le m e n ta l SOF, Ex.AA: Dangler Decl.) T h e re is evidence in the record that on September 12, 2005, the Appeals Branch in S a c ra m e n to , California, received a letter from Plaintiff complaining that the Appeals

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C o o rd in a to r, "CO Wagner, or something to that effect,"3 was stating frivolous reasons via sc re e n in g sheets as to why he would not process Plaintiff's appeal concerning the guilty f in d in g for conspiracy to murder police officers. Plaintiff complained, the reasons for not p ro c e ss in g the appeal are "stupid and dumbfounded" and the appeals coordinator is " p la yin g games." (Plaintiff's Response, SOF, Ex. O: Letter of 9/6/2005.) On October 3, 2 0 0 5 , Plaintiff again wrote the Sacramento, Appeals Branch, imploring someone to please f in d his appeal. Id. at Letter of 10/3/2005. On October 19 and November 2, 2005, P lain tiff was told that he needed to proceed through the second level appeal first before c o n ta c tin g the Director, and he needed to contact the Appeals Coordinator. Id. at Letter o f 10/19/2005; Letter of 11/2/2005. On November 3, 2005, the Appeals Coordinator at C o rc o ra n responded to the Plaintiff, informing him that he needed to comply with the s c re e n in g directives from the Appeals Coordinator at HDSP, who was Defendant D a n g le r. Id. at Letter of 11/3/2005. All roads led the Plaintiff back to Defendant D a n g le r. Screening directives had been issued by Defendant Dangler on July 28, 2005, b e c au s e Plaintiff's appeal included excessive verbiage and voluminous unrelated d o c u m e n ta tio n . He was told to remove the Rules Violation Report (RVR) log # FC0 5 ­ 5 -0 0 1 2 and resubmit the appeal. Arguably, the Plaintiff had complied with this d ire c tiv e because on November 15, 2005, Defendant Dangler wrote a note and signed a s e c o n d screening form apologizing for missing the Plaintiff's request to remove the RVR lo g "for the second time." Id. Ex. R.

D e f en d a n t Dangler attests that he was one of two appeals coordinators. The other b e in g CO S. Babich. (Document 138: Supplemental SOF, Ex.AA: Dangler Decl. at ¶ 2.) T h e Court finds that the name Dangler was more likely to be misconstrued as Wagner than th e name Babich. -5-

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O n January 25, 2006, the Chief Deputy Warden (A), D.K. Sisto,4 issued the d e c isio n granting Plaintiff's appeal in part as to Plaintiff's claim that the conspiracy to m u rd e r police officers was unsupported by the evidence. The Court refers to this as D e c is io n One. (Ds' MSJ, SOF, Ex. I.) Decision One contains the following pertinent paragraphs: T h e inmate's allegation that the guilty finding is unreliable based on the e v id e n c e is supported. The RVR report states that McCoy was an alleged c o -c o n sp ira to r with fellow Crip and Blood disruptive group members who w e re conspiring to murder Peace Officers. This information is based on in f o rm a tio n from confidential memorandums dated 1/26/05 by M. Minnick, 2 /2 5 /0 5 by R. Marquez, and 5/2/05 by D. Dittman. The RVR was heard by th e SHO on 6/15/05. Inmate McCoy was found guilty of Conspiracy to M u rd e r Peace Officers and was assessed 180 days forfeiture of credits c o n sis te n t with a Division A-2 offense. The SHO reviewed all of the above m e n tio n e d confidential memorandums along with the RVR in the p re p o n d e ra n c e of guilt. U p o n review of the confidential memorandums listed above, McCoy is n o t mentioned in memorandums dated 1/26/05 and 2/25/05. The m em o ra n d u m dated 5/2/05 states that he was aware of the plan to m u r d e r Peace Officers. However, there is no supporting d o c u m e n ta tio n to demonstrate that he was involved in the planning of th e assaults. Additionally, there is no proof such as a date, time, or p la c e that states he was involved in the alleged planning of the c o n s p ir a c y . The information suggests that he knew of the planned a s s a u lt but does not support the allegation that he was an active c o n s p ir a to r . (M S J , SOF, Ex. I: Decision One at 3-4) (emphasis added). The Chief Deputy Warden

19 d ire c te d that a Modified Order be generated by the HDSP Appeals Office instructing the 20 D is c ip lin a ry Officer to dismiss RVR 5 Log # C-05-05-017 dated 5/2/2005. Id. at 4. The 21 r e m a in d e r of the Plaintiff's appeal was denied as it related to the alleged RV due process 22 v io la tio n s . Id. 23 24 25 26 27 28 D e c is io n One, was signed for Chief Deputy Warden (A), D.K. Sisto by someone, w h o s e signature the court can not read.
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Rule Violation Review. -6-

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A s the Court noted in its May 6, 2009, Order,6 the Inmate/Parolee Appeal Form f ile d by the Plaintiff on July 25, 2005, subsection G, Reviewer's Action, was signed by D e f en d a n t Dangler as "completed" and marked "granted" on January 25, 2006. The W a rd e n /S u p e rin te n d e n t affixed his signature, and the form was date stamped as returned to the inmate on January 27, 2006. Id., Ex. E. A c c o rd in g to Defendant Dangler's memo written to the Corcoran Inmate Appeals A n a lys t on April 27, 2006, Decision One was mailed on January 25, 2006, to Corcoran w h e re the Plaintiff was being housed in SHU, but within four days, Defendant Dangler d e ter m in e d that the appeal should have been denied. Defendant Dangler immediately c o n ta c te d Corcoran's appeals office and asked that, upon receipt, they mail the appeal re sp o n s e and Modification Order back to him. He received the appeal decision back from C o rc o ra n on or about February 20, 2006, and "prepared the revised response and it was m a ile d to [Corcoran] on February 21, 2006." Id., Ex. J: Dangler Memo. The Court refers to the "revised response" as Decision Two.7 It denied the appeal. D e f en d a n t Dangler also revised the Inmate/Parolee Appeal Form filed by the P la in tif f on July 25, 2005, subsection G, Reviewer's Action, scratching out "granted" and m a rk in g it "denied." He did not change his signature date, but changed the date stamp for w h e n it was returned to the inmate from January 27, 2006, to February 21, 2006. Id., Ex. E. D e c is io n Two was almost identical to Decision One. Decision Two was issued w ith o u t changing its date or in any other way designating or identifying that it was a re v is io n . Only three changes were made. The first sentence in the above two paragraphs w a s changed from "the inmate's allegation that the guilty finding is unreliable based on

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S e e Document 123: Order at 15.

D e c is io n Two, like Decision One, was issued by Chief Deputy Warden (A), D.K. S is to , and signed for him by someone, whose signature the court can not read. -7-

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th e evidence is supported" to "the inmates allegation that the guilty finding is unreliable b a se d on the evidence is not supported." Id., Ex. L: Decision Two at 3 (emphasis added). Decision Two omitted the second paragraph where the Warden concluded that two of the c o n f id e n tial memorandums failed to name the Plaintiff and the third memorandum only s u g g e ste d he was aware of the conspiracy. Most importantly, Decision Two changed the d is p o s itio n of the appeal from granted to denied. Id. at 3-4. E v e n though Defendant Dangler allegedly took action in February to "rectify" the e rro n e o u sly granted appeal and reinstate the RV, the first decision, Decision One, was p la c ed in Plaintiff's central file and he was released into the general prison population at th e beginning of April. By the end of April, it came to Defendant Dangler's attention that P la in tif f was being housed in general population pursuant to Decision One. Defendant D a n g le r wrote his memo to the Corcoran Appeal's office on April 27, 2006, directing that th e Plaintiff be returned to SHU housing. Thereafter, Plaintiff's attempts to appeal D e f e n d a n t Dangler's decision to change the decision to deny the appeal instead of grant it w e re screened out by the appeals coordinator at Corcoran as duplicative. (Response, S O F , Ex. M13: screening forms.) T h e evidence in the record, construed in Plaintiff's favor, supports a theory of retaliatio n because it suggests that Defendant Dangler did know about the Plaintiff's c o m p l a in ts to his superiors at the Appeals Branch in Sacramento, which accused him of im p ro p e rly screening and delaying processing of his appeal. The manner by which D e f e n d a n t Dangler changed the appeal decision suggests that he was attempting to o b lite ra te or cover-up the first decision without making a record, instead of withdrawing it, explaining the error and reason for changing the decision, and reissuing it. Because th e re was no record of the change, Plaintiff's attempts to appeal Dangler's decision to c h a n g e the appeal from "granted" to "denied" were screened out as duplicitous appeals on th e merits of the RV hearing and conviction. Id. at Ex. M13: July 17, 2006 Screening at the First Level; August 25, 2006 Screening at Second Level. Defendant Dangler's

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a ss e rtio n that the RV was based on some evidence and the denial was based on p e n o lo g ic a l reasons is disputed by the express findings in Decision One that two of the c o n f id e n tial reports failed entirely to mention the Plaintiff and the third suggested only th a t he knew about the conspiracy but was not an active participant. The Court finds a n e x u s between Plaintiff's attempt to exercise his right to access the grievance system to a p p e al the RV decision and the alleged retaliation by Dangler that he improperly and a rb itrar ily, without any penological reason, changed the appeal decision from granted to d e n ie d . The Court finds that there are material issues of fact in dispute which prevent s u m m a ry judgement from being granted for Defendant Dangler on the claim of r e ta lia tio n . D e lib e ra te Indifference to Plaintiff's Medical Needs. Prison officials violate an inmate's Eighth Amendment rights under the United S ta te s Constitution if they act with deliberate indifference to the serious medical needs of a prisoner. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1 0 5 0 , 1059 (9 th Cir. 1992) (overruled on other grounds by WMX Technologies, Inc. v. M ille r, 104 F.3d 1133 (9 th Cir. 1997). A "serious medical need" exists if the failure to tre a t the prisoner could result in further significant injury or "`unnecessary and wanton in f lic tio n of pain.'" McGuckin, 974 F.2d at 1059 (citing Estelle, 429 U.S. at 104). "Deliberate indifference" requires a showing that a defendant possessed a sufficiently c u lp a b le state of mind, Hudson v. McMillian, 503 U.S. 1, 5-6 (1992); McKinney v. A n d e rs o n , 959 F.2d 853 (9 th Cir. 1992), by acting with a knowing or conscious disregard f o r the prisoner's serious medical need. Farmer v. Brennan, 511 U.S. 825, 837 (1994); se e McGuckin, 974 F.2d at 1060 ("A defendant must purposefully ignore or fail to re sp o n d to a prisoner's pain or possible medical need in order for deliberate indifference to be established.") Indifference must be substantial; malpractice or even gross negligence d o e s not constitute cruel and unusual punishment. Estelle, 429 U.S. at 106. -9-

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T h e medical record compiled by the Plaintiff reflects the following details. P la in tif f suffers from a seizure disorder, which requires close observation for s e iz u re s and routine seizure medication. (P's Response, Ex. O15. He requires housing on a lower bunk because of the seizure disorder and must not work around moving m a c h in e ry, heights, near hot liquids or surfaces, handle sharp objects, or drive vehicles. Id. at Ex. N14. Because of his seizure disorder, the Plaintiff was seen regularly several tim e s during the day by medical staff, medical tech assistants (MTAs), who dispensed his m ed icatio n . (P's Depo. Transcript at 183.) On June 5, 2006, a nurse progress note was completed at 22:41 (10:41 p.m.), w h ich reflects the Plaintiff was complaining of "having seizure right now, bone on his le f t shoulder sticking out; wants to go to Acute Care Hospital." The nurse took his vital s ig n s , which were normal and reported that the Plaintiff was upset, but with clear speech, w a lk in g back and forth and writing down the names of prison staff. The ER RN advised to watch the Plaintiff, and refer him for follow-up to the yard RN in the morning on 6 /6 /0 6 . Id. at Ex. V. It is undisputed that Plaintiff had a seizure, fell and dislocated his s h o u ld e r. It is also undisputed that the Plaintiff was not seen for follow-up the next m o rn in g . On June 6, 2006, he was seen several times by MTAs for the routine dispensing of h is seizure medication. He alleges he told them he needed emergency medical treatment fo r his dislocated shoulder, but it was not forthcoming. (P's Depo. Transcript at 182-83); (R e sp o n s e , Ex. Q17). Plaintiff completed a health care request form, wherein he reported h a v in g had the seizure, having a dislocated shoulder, having not been seen yet"!" He re p o rte d a pain scale of "10." The request form was received at 21:00 (9:00 p.m.) on the six th . It was reviewed by an RN on June 7, 2006, at 7:15 a.m., who marked it " e m e rg e n c y" and at 11:10 a.m. the Plaintiff was transferred to the Acute Care Hospital. Id. at X.

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M u ltip le records reflect that Plaintiff was seen at the Acute Care Hospital around 1 1 :0 0 a.m. on June 7, 2006, with a dislocated left shoulder, which was confirmed by Xra y. Id. at Exs. W, Y, Z, B2, R18. He was "admitted so he [could] get general anesthetic w ith muscle relaxant for reduction of his shoulder dislocation in am by Dr. Smith." Id. at E x . Y. O n June 8, his shoulder was X-rayed again and found to have spontaneously re d u c e d . There was no indication for surgical intervention, and surgery was cancelled. His arm was placed in a sling. He was discharged, and prescribed follow-up in the o rth o p e d ic clinic. Id. at Ex. Z. T h is record disputes Defendants' asserted facts in support of the Motion for S u m m a r y Judgment, which are as follows. D e f e n d a n ts present affidavits from various medical staff named by the Plaintiff in h is Complaint, who attest they never saw him or were not involved in any aspect of his c a re . This proves only that the Plaintiff, like the Court, can not read the signatures of the in d iv i d u a ls who signed the various medical records.8

D e fend an ts Rubalcaba and Reyes attest they were not working in McCoy's building o n June 5, 2006, and would not have had any contact with the Plaintiff during the dates a lle g e d in the Complaint. Defendants Tomlin, Kee, and Garcia attest that they never received a n y call for medical assistance by the time they ended their work shifts at 10p.m. on June 5. N e v e r th e l e ss , Defendant Poblete noted Defendant Reyes' name on his Nurse's Progress N o te s from the night of the seizure. He also noted that "ER RN" advices to watch inmate a n d follow-up with yard RN at a.m. on 6/6/06. Assuming the "ER RN" was Defendant R e ye s, either one or both of these Defendants were arguably responsible for the alleged d e lib e ra te ly indifferent care provided to the Plaintiff on June 5, and perhaps the morning of J u n e 6. T h e inmate log reflects signatures, which in large part can not be read and are c o n f u sin g ly recorded out of sequence. Nevertheless, without question Plaintiff was seen by b o th prison officials and medical staff (MTAs) from June 5 to 7, as follows: June 5, a " D o c to r Call" (DR) sign in 22:30 and sign out 23:00; June 6 there were numerous official v is ita tio n s throughout the day and DR sign in 12:00 and sign out 12:15, sign in 13:10 and s i g n out 14:05, sign in 16:05 and sign out 16:22, sign in 20:50 and sign out 21:05, sign in 1 2 :0 0 and sign out 12:15, and sign in 16:15 and sign out 16:30; June 7, a DR sign in 7:50 and - 11 -

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T h e MTAs,9 who allegedly dispensed his seizure medication attest that on June 7 a n d 8, the Plaintiff never complained about having a seizure or dislocated shoulder. On J u n e 7 and 8, Plaintiff was in the hospital being treated on an emergency basis for the d i slo c a t e d shoulder he allegedly had not complained about to the MTAs. These a tte sta tio n s are meaningless in respect to whether or not the MTAs, who saw the Plaintiff o n June 6, ignored his requests for medical treatment. See n. 7. T h e Court finds that the medical record construed in favor of the Plaintiff supports h is claim that Defendants were deliberately indifferent to his serious medical need for tre a tm e n t of his dislocated shoulder. Leaving aside for now the Plaintiff's allegations that h e told Defendants he was going to have a seizure and they ignored his pleas for help and th a t they continued to ignore him during the seizure, the medical record reflects that m e d ic a l staff knew shortly after the seizure that he was seriously injured with a dislocated s h o u ld e r. They refused his request for emergency treatment, and told him he would be s e e n the next morning by the yard RN. He was not seen the next day, except by MTAs, f ro m whom he, unsuccessfully, sought assistance. Even after he filled out a Request for H e a lth Care Service form at 9:00 p.m. on June 6, 2006, it was June 7, 2006, at 11:00 a.m. b e f o re Defendants finally referred him to the emergency care he arguably needed at 10:41 p .m . on June 5, 2006. The Court finds that there are material issues of fact in dispute, which prevent s u m m a ry judgment from being granted for Defendants Tomlin, Kee, Garcia, Rubacalaba, P o b le te , Reynoso, Campos, Gonzales, and Morales. Q u a lifie d Immunity A government official is entitled to qualified immunity unless: 1) the plaintiff

s ig n out 8:10, sign in 20:35 and sign out 21:00, and sign in 8:58 and sign out 9:15. Given th is evidence the Court will not grant summary judgment because the Plaintiff has given w ro n g names and confused dates.
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Defendants refer to themselves as LVNs. - 12 -

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a lle g e s facts that show a constitutional violation, and 2) it was clearly established at the tim e that the conduct was unconstitutional. Saucier v. Katz, 533 U.S. 194, 201 (2001). A g o v e rn m e n t official is shielded from damages liability unless his conduct violates clearly e sta b lis h e d law which a reasonable official in the defendant's position would have k n o w n . Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity entitles p riso n officials "ample room for mistaken judgments by protecting all but the plainly in c o m p e te n t or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 2 2 9 (1991). P lain tiff alleges Defendants intentionally and deliberately violated clearly e s ta b lis h e d constitutional rights. See supra pp. 3-9 (retaliation claim); supra pp. 9-12 (E ig h th Amendment claim of deliberate indifference). There are material facts in dispute re g a rd in g these alleged constitutional violations. Qualified immunity will not protect th e se Defendants if Plaintiff prevails at trial on his claim of retaliation and/or his claim of d e lib e ra te indifference. A c c o r d in g l y , I T IS ORDERED that the Motion for Summary Judgment (document 99) is D E N IE D , except in the part granted by the Court on May 6, 2009. I T IS FURTHER ORDERED that all other pending motions are DENIED. I T IS FURTHER ORDERED that as to Defendants' request that this Court re a ff irm its grant of summary judgment based on Balisok, the Court shall do so or not, p e n d in g supplemental briefing as follows: 1) Defendants shall file a Response to P la in tif f 's Sur-Reply within 20 days of the filing date of this Order, which shall be limited to establishing the facts necessary for Balisok to apply in this case; 2) Plaintiff shall have 2 0 days to file a Reply to Balisok, which shall be so captioned. I T IS FURTHER ORDERED that the Clerk of the Court shall refer this case to a S e ttle m e n t Conference and provide a copy of this Order by email to Sue Jane Younger at

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syo u n g e r@ c a e d .u sc o u rts.g o v . The Defendants shall provide a status report, with this C o u rt regarding the date set for the Settlement Conference, any continuances, and its u ltim a te conclusion. DATED this 30 th day of September, 2009.

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