Harrison v. Adams, et al

Filing 266

ORDER ADOPTING IN PART FINDINGS AND RECOMMENDATIONS to GRANT IN PART and DENY IN PART Defendants' Motion for Summary Judgment 202 , 247 , signed by District Judge Anthony W. Ishii on 8/25/15: The case is to remain open. (Hellings, J)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

MICHAEL D. HARRISON,

8
9

Plaintiff,

10

v.

11
12

T. MOORE, et al.,

13

Case No. 1:08-cv-1065-AWI-MJS (PC)
ORDER ADOPTING IN PART FINDINGS
AND RECOMMENDATIONS TO GRANT
IN PART AND DENY IN PART
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
(Doc. 247)

Defendants.

14
15
16

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

17
18
19

rights action brought pursuant to 28 U.S.C. § 1983.

The action proceeds against

Defendants Moore, Davis-Jones, Rabaino-Burns, Dava, Kim, Galvan, C. Gonzalez, M.

20

Gonzalez, O’Neal, Parsons, Roth, Tumayo, Urbano, Vicente, Casio, Cisneros, and

21

Coronado on Plaintiff’s medical indifference claims. Doc. 160.1 The matter was referred

22

to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule

23

302 of the United States District Court for the Eastern District of California.

24
On June 18, 2015, the Magistrate Judge issued Findings and Recommendations
25
26
27
28

to grant in part and deny in part Defendants’ motion for summary judgment. Doc. 247.
1

Service was recently reattempted on Defendant Johnson. Doc. 256. Defendants Bastianon, Zakari,
Edmonds and Raygoza have not been served in this action and have not otherwise appeared in it. Docs.
238 and 245.

1

Defendants filed objections to the Findings and Recommendations on July 2, 2015.

2

Doc. 254. Plaintiff filed objections to the Findings and Recommendations on July 28,

3

2015. Doc. 260. Defendants object to the recommendation to deny summary judgment

4
to Defendants Davis Jones and the mental health defendants, and to the
5
6

recommendation to deny qualified immunity to these defendants. Plaintiff objects to the

7

recommendation to grant summary judgment to Defendants Moore, Kim, and Dava, as

8

well as to the mental health defendants after the period of April 20-May 3, 2007.

9
10
11

In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has
conducted a de novo review of this case. Having carefully reviewed the entire file, the
Court finds that the June 18, 2015 Findings and Recommendations are supported by the

12
13
14

record and by proper analysis. The Court accordingly adopts all parts of the Findings
and Recommendations except for the recommendation regarding Defendant Moore as

15

Plaintiff sufficiently clarified his allegations against Defendant Moore in his objections

16

(submitted in the form of a declaration signed under penalty of perjury). The Court

17

addresses the parties’ objections below.

18
19

I.

DEFENDANTS’ OBJECTIONS
A.

Nurse Davis Jones

20
21

The Court rejects Defendants’ contention that there is no issue of disputed fact

22

regarding whether Nurse Davis Jones violated the Eighth Amendment. To the contrary,

23

Davis Jones’ alleged refusal to examine or refer Plaintiff for further treatment despite his

24

complaints of severe pain and the visible swelling and bruising of his arm; and her

25

peremptory statement that if he could move his arm, “it ain’t broke,” if true, indicate that

26

she consciously disregarded obvious signs of serious injury, and failed to provide a

27
28

minimally competent level of care. See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th
2

1

Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133,

2

1136 (9th Cir. 1997); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989);

3

Moore v. Thomas, 653 F.Supp.2d 984, 1000 (N.D. Cal. 2009).

4
B. Mental Health Staff: Psychologist Roth, Correctional Counselor Cisneros,
5
LPTs Parsons, M. Gonzalez, C. Gonzalez, Galvan, Casio, O’Neal, Coronado,

6
7

and Tamayo2

8

The Court also rejects Defendants’ objections that there is no issue of disputed

9

fact regarding whether the mental health defendants violated the Eighth Amendment.

10
11

Taken as true, Plaintiff’s allegations that he complained of arm pain to every single
mental health staff member with whom he interacted, that the bruising and swelling in his

12
13
14

arm was plainly visible, that none of the mental health defendants responded to his
complaints, and that they falsified their records, state a claim of medical indifference.

15

See McGuckin, 974 F.2d at 1060; M.H. v. Cnty. of Alameda, 62 F.Supp.3d 1049,

16

1077-1078 (N.D. Cal. 2014) (intake nurse potentially liable for deliberate indifference

17

where she knew of decedent’s risk factors for alcohol withdrawal, but failed to ensure he

18

received follow up care, and may have falsified records).

19

Although some of the above Defendants may not have interacted with Plaintiff

20
21

between April 20 and May 3, Defendants have not at this stage shown an absence of

22

disputed fact as to any Defendant in particular. Therefore the Court finds there remain

23

issues of disputed fact regarding which Defendants allegedly ignored Plaintiff’s claims of

24

severe pain and visible signs of injury between April 20 and May 3, 2007. The fact that

25

Plaintiff received an ice pack and some ibuprofen on the day of his injury does not

26
27
28

2

As noted, Psychiatrist Zakari and LPTs Edmonds, Raygoza, Johnson, and Bastianon have not been
served or appeared in this action. The claims against them are not addressed in the Findings and
3
Recommendations.

1

absolve mental health defendants of potential liability under the Eighth Amendment for

2

the two-week period that followed. An ice pack would be of limited use after a few hours,

3

and Defendants do not indicate they were aware Plaintiff was taking ibuprofen.

4
Defendants provide no authority for their contention that non-treating prison staff are
5
6

entitled to assume that inmates are already receiving adequate care, and the Court has

7

found none. See Estate of Prasad ex rel. Prasad v. Cnty. of Sutter, 958 F.Supp.2d

8

1101, 1113 (E.D. Cal. 2013) (sheriff’s deputies who ignored medical instructions were

9

not justified in believing decedent “was in capable hands” even though he was receiving

10

some treatment from medical staff).

11

C. Qualified Immunity

12
The Court rejects Defendants’ argument that they are entitled to qualified

13
14

immunity. It is clearly established that both medical and non-medical staff may be held

15

liable for failing to respond to an inmate’s complaints of pain and requests for medical

16

assistance. See Erickson v. Pardus, 551 U.S. 89, 90 (2007); Estate of Prasad ex rel.

17

Prasad v. Cnty. of Sutter, 958 F.Supp.2d 1101, 1112 (E.D. Cal. 2013). It is also clearly

18
19

established that prison staff may violate the Eighth Amendment not only by failing to
provide care altogether but by providing care that is medically unacceptable. See Snow

20
21

v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), overruled on other grounds by Peralta v.

22

Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014); Ortiz, 884 F.3d at 1314. Accepting

23

Plaintiff’s allegations as true, reasonable prison staff in Davis Jones’ and the mental

24

health Defendants’ positions would have known that ignoring an inmate’s visible injury

25

and complaints of pain was unlawful.

26

II.

PLAINTIFF’S OBJECTIONS

27
A. Defendant Moore
28

4

1

Plaintiff clarifies for the first time in his objections (submitted in the form of a

2

declaration made under penalty of perjury) that Moore was present at his cell-front when

3
4

Defendant Davis-Jones told Plaintiff that if he could move his arm, it was not broken.
Plaintiff states that “they both left me to suffer. So Sgt. Moore is just as guilty as T.

5
6

Davis Jones.” Doc. 260, at 2. Plaintiff also states that “when I showed [Moore] my

7

broken arm and asked for help, he refused, knowing I was hurt.” Id. It is unclear when

8

this subsequent refusal took place. Taking as true Plaintiff’s allegations that his arm was

9

visibly swollen and bruised, that he complained of severe pain, and that Moore knew

10
11

Plaintiff had been in a fight, there is an issue of disputed fact regarding whether
Defendant Moore acted with deliberate indifference to Plaintiff’s serious medical needs

12
13
14

when Moore refused to seek medical care. See Jett v. Penner, 439 F.3d 1091, 1098
(9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 904-905 (9th Cir. 2002). Accordingly,

15

the Court does not adopt the Findings and Recommendations with regards to Defendant

16

Moore and will deny summary judgment on this defendant.

17
18
19

B. Dr. Kim & Nurse Dava
The Court rejects Plaintiff’s argument there are issues of disputed fact regarding
whether Defendants Kim and Dava violated his Eighth Amendment rights. As the

20
21

Magistrate Judge stated in the Findings and Recommendations, medical staff have

22

broad discretion in prescribing medication and determining what care is appropriate.

23

See Doc. 247, at 20-21; see also, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir.

24

2004). Viewing the facts in the light most favorable to Plaintiff, Defendants have

25

established an absence of evidence to support the claim that Defendant Kim or

26

Defendant Dava knowingly provided care that was medically unacceptable when they

27
28

failed to prescribe antibiotics and deferred further treatment decisions until follow-up
5

1

appointments. See Toguchi, 391 F.3d at 1058; Jackson v. McIntosh, 90 F.3d 330, 332

2

(9th Cir. 1996).

3
4

C. Mental Health Defendants
The Court rejects Plaintiff’s argument that the mental health defendants caused

5
6

an unconstitutional delay in medical care for the period from June 6, 2007 through

7

September 1, 2007. As the Findings and Recommendations noted, Defendant saw

8

medical staff no fewer than 12 times during this three-month period, and his level of care

9

was found to be constitutionally adequate. Plaintiff’s contention that the mental health

10
11

defendants could have simply called the chief medical officer to have Plaintiff sent to
Mercy Hospital is not supported by the facts.

12
13
14
15
16
17
18
19

Accordingly, it is HEREBY ORDERED that:
1. The Court adopts all parts of the June 18, 2015 Findings and Recommendations
(Doc. 247) except for the recommendation regarding Defendant Moore;
2. Defendants’ motion for summary judgment (Doc. 202) is GRANTED
as to Defendants Rabaino-Burns, Kim, and Dava; and
3. Defendants’ motion for summary judgment (Doc. 202) is DENIED as to
Defendants Moore, Davis-Jones, Urbano, Roth, C. Gonzalez, M. Gonzalez,

20
21
22

Casio, Coronado, Cisneros, Galvan, O’Neal, Parsons, and Tamayo.
4. The case is to remain open.

23
24
IT IS SO ORDERED.
25
26

Dated: August 25, 2015
SENIOR DISTRICT JUDGE

27
28

6