Earp v. County of Tulare et al

Filing 45

ORDER Granting 22 Motion for Summary Judgment; Clerk of Court is Directed to Enter Judgment and Close Case signed by Magistrate Judge Michael J. Seng on 03/28/2012. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONNY Y. EARP,

CASE NO. 1:11-cv-0196-MJS (PC)

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Plaintiff,

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

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v.

(ECF No. 22)

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COUNTY OF TULARE, et al.,

CLERK OF COURT IS DIRECTED TO
ENTER JUDGMENT AND CLOSE ACTION

Defendants.

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Plaintiff Donny Y. Earp, a former detainee at the Tulare County Jail1 (“Jail”), filed this

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civil rights action on February 3, 2011 pursuant to 42 U.S.C. § 1983. In it he claims a
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denial of medical care in deliberate indifference to his serious medical needs in violation
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of the Eighth Amendment. He names County of Tulare and its employee Physician’s
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Assistant Henry as Defendants. (ECF No. 1.)
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Defendant County of Tulare filed its Answer on April 25, 2011 (ECF No. 6),
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Defendant Henry answered on June 30, 2011. (ECF No. 11.)
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The parties have consented to Magistrate Judge jurisdiction for all purposes. (ECF
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No. 10.)
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Now before the Court is Defendants’ Motion for Summary Judgment/Adjudication
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filed pursuant to Federal Rules of Civil Procedure, Rule 56. (ECF No. 22.)
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Known as the Bob Wiley Detention Facility.

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Plaintiff’s opposition documents were filed on February 24, 2012 (ECF Nos. 31-37.)

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Defendants’ Reply documents and Objections were filed on March 9, 2012. (ECF Nos. 41-

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43.)
The parties appeared through their attorneys and argued their respective positions

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before the undesigned on March 23, 2012.

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I.

FACTS

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The facts, viewed in the light most favorable to Plaintiff, are as follows:

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On December 11, 2009, Plaintiff underwent surgical pin fixation of a broken right

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hand and placement of the hand in a hard cast. (Plaintiff’s Statement of Disputed &

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Undisputed Facts, Facts 4-5, ECF 32.)

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On January 6, 2010 Plaintiff was arrested. (Id. Fact 7.) While detained he

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complained of generalized weakness. (Id.) He was evaluated at the Kaweah Delta District

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Hospital Emergency Department and cleared for booking into the Jail on January 7, 2010.

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(Id.)

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He visited the Jail infirmary on January 7th, and again on January 8th, 12th, 15th, 19th

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and 20th, receiving treatment for diabetes and a cold, and pain medication for his right

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hand. (Id. Facts 9-17.)
During the January 20th visit, Plaintiff was given additional pain medication. (Id. Fact

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19.)
By January 23rd Plaintiff’s right hand was red, swollen, and warm, and he was given

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antibiotics for the first time. (Id. Facts 21-24.)
He visited the Jail infirmary again on January 25th and was given additional

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antibiotics. (Id. Facts 25-27, 47.)

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On January 27th he awoke to find his right hand numb and painful. He was

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transported to the Kaweah Delta Hospital Emergency Department where the pins and cast

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were removed; he then remained in the hospital for antibiotic therapy until March 10, 2010

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when he was released back to the Jail. (Id. Facts 27-28, 38.)

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II.

LEGAL STANDARDS
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A.

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Rule 56 of the Federal Rules of Civil Procedure states as to a party who has

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Summary Judgment

moved for summary judgment:

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The judgment sought shall be rendered forthwith if the pleadings, depositions,

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answers to interrogatories, and admissions on file, together with the affidavits, if

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any, show that there is no genuine issue as to any material fact and that the moving

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party is entitled to judgment as a matter of law.

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Accordingly, to prevail on a motion for summary judgment, the movant must

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demonstrate that (1) there is no genuine issue as to any material fact; and (2) that he is

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entitled to summary judgment as a matter of law. As to the first of these determinations,

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a fact is deemed “material” if proof of its existence or nonexistence would affect the

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disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that

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a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining

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whether a genuine issue has been raised, the court must construe all inferences and

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ambiguities against the movant and in favor of the non-moving party. United States v.

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Diebold, Inc., 369 U.S. 654, 655 (1962).

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The party seeking summary judgment shoulders the initial burden of demonstrating

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to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the

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non-moving party, to survive the motion for summary judgment, may not rest on the

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allegations averred in his pleadings. Rather, the non-moving party must demonstrate that

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specific, material facts exist which give rise to a genuine issue. Id. at 324. Under this

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standard, the existence of a mere scintilla of evidence in support of the petitioner's position

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is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252.

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Likewise, conclusory allegations or denials, without more, are insufficient to preclude the

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granting of the summary judgment motion. Ross v. Communications Satellite Corp., 759

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F.2d 355, 365 (4th Cir. 1985), overruled on other grounds 490 U.S. 228 (1989).
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The parties bear the burden of supporting their motions and oppositions with the

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papers they wish the court to consider and/or by specifically referencing any other portions

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of the record they wish the Court to consider. Carmen v. San Francisco Unified School

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Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record

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for triable issues of fact. Id.

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B.

Eighth Amendment—Inadequate Medical Care

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“[T]o maintain an Eighth Amendment claim based on prison medical treatment, an

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inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439

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F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The

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two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical

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need’ by demonstrating that ‘failure to treat a prisoner's condition could result in further

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significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant's

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response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting

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McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992)).

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Deliberate indifference is shown by “a purposeful act or failure to respond to a

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prisoner's pain or possible medical need, and harm caused by the indifference.” Id. (citing

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McGuckin, 974 F.2d at 1060); see Farmer v. Brennan, 511 U.S. 825, 837–42 (1994).

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Deliberate indifference may be manifested “when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” Id. (citing McGuckin, 974 F.2d at 1060). Where the claim

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involves a delay in the receipt of treatment or care, the claim is not cognizable unless the

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delay led to further harm. McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada Bd. of

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State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir.1985)).

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Claims for failure to provide adequate care for serious medical needs, when brought

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by a detainee who has been neither charged nor convicted of a crime, are analyzed under

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the substantive Due Process Clause of the Fourteenth Amendment rather than the Eighth

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Amendment. Lolli v. County of Orange, 351 F.3d 410, 418 (9th Cir. 2003); Gibson v.

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County of Washoe, 290 F.3d 1175, 1185–86 (9th Cir. 2002); Frost v. Agnos, 152 F.3d
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1124, 1128 (9th Cir. 1998). The Fourteenth Amendment “imposes, at a minimum, the

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same duty the Eighth Amendment imposes: persons in custody have the established right

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to not have officials remain deliberately indifferent to their serious medical needs.” Gibson,

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290 F.3d at 1187. The law applicable to Plaintiff's claim is the same regardless of his

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custody status.

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III.

ANALYSIS

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In essence, Plaintiff claims that while detained, he made numerous requests for

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medical attention for his right hand and Defendants displayed deliberate indifference to

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this serious medical condition. He asserts that Defendants denied him appropriate care

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from January 7 until January 27, 2010, when he finally was taken to Kaweah Delta District

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Hospital for proper treatment. (Compl., p. 1-2, ECF No. 1.) By then his hand had become

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severally infected. (Id.) He was required to undergo hospitalization and six weeks of

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antibiotic treatment for the infection. (Id. at 4; Plaintiff’s Statement of Undisputed and

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Disputed Facts, Facts 36-38.)

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It is undisputed that Plaintiff’s post-surgical right hand, pinned and in a hard cast,

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constituted a serious medical need. (Plaintiff’s Statement of Undisputed and Disputed

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Facts, Facts 4-6, 9, 11, 12.) Thus, the first prerequisite of a deliberate indifference claim

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has been satisfied.

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Plaintiff, however has not submitted competent evidence that could satisfy the

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second requirement, i.e. that Defendants were aware of his medical need and acted with

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deliberate indifference so as to cause him injury. Defendant’s unrebutted evidence

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establishes just the opposite.

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Defendants maintain that they have presented competent evidence showing they

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at all times met the standard of care, but that even if the contrary were true, their evidence

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rules out deliberate indifference and shows that no act or omission caused Plaintiff injury.

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Defendants offer the sworn declarations of two qualified medical doctors opining (1) that

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applicable standards of care were at all time met (Defendants’ Separate Statement of

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Undisputed Facts, Facts 39, 41, 42-56), and regardless (2) with a reasonable degree of
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medical certainty that acts and omissions attributed to Defendant’s did not cause injury to

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Plaintiff (Id. Facts 57-71).

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Plaintiff counters with the declaration of a registered nurse disputing (1) compliance

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with the standard of care (Plaintiff’s Statement of Disputed and Undisputed Facts, Facts

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39, 41-46, 48, 50-52, 54, 55), including whether the first objective signs of infection

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presented on January 23, 2010 (Id. Facts 43, 51), and (2) whether Defendants’ caused

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injury to Plaintiff (Id. Facts 57, 58, 63.)

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Plaintiff does provide evidence creating a genuine issue of material fact as to

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whether Defendants fell below the standard of care for similarly situated medical

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practioners. (Id. Facts 39-43, 45-46, 48, 50-52, 54-55.) However, Plaintiff presents no

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evidence, opinion or otherwise, to suggest that Defendants alleged negligent acts reflected

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gross negligence or deliberate indifference to Plaintiff’s medical needs. (Id. Facts 39-43,

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45-46, 48, 50-52, 54-55, 57, 58, 63.)

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Equally, if not more significantly, is Plaintiff’s failure to offer competent evidence that

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any act or omission by Defendants caused him any injury. Plaintiff’s sole retained medical

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expert, registered nurse Mary Dromi, is not competent to opine on the medical causation

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issues raised in this case. (See Declr. of Mary Dromi, pp. 5-7, ECF No. 33.)2 She does not

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support her claim of scientific, technical or other specialized knowledge in the areas of

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orthopedic injuries and infectious disease causation. This Court agrees with the reasoning

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in the line of cases which rejects opinion evidence from a registered nurse, rather than a

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qualified physician, on such issues. (Fed. Rules of Evi. Rule 702; Fed. R. Civ. P. Rule

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56c)(4); Gayton V. McCoy 593 F.3d 610, 616 (7th Cir. 2010); see Vaughn v. Mississippi

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Baptist Medical Center 20 So.3d 645, 652 (Miss. 2009) (“nurses cannot testify as to

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medical causation.”); see also Elswick v. Nichols, 144 F.Supp.2d 758, 767 (E.D.Ky. 2001)

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(nursing expert cannot testify as to how plaintiff received infection because it was “outside

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[her] area of expertise”); see also Long v. Methodist Hosp. of Indiana, Inc., 699 N.E.2d

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Declarations or affidavits submitted in conjunction with a summary judgment motion must be
made on personal knowledge; set forth facts that would be admissible in evidence; and show the affiant is
competent to testify to the matters stated. (FRCP 56(c)(4)).

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1164, 1169 (Ind.Ct.App. 1998) (“[W]e now hold that nurses are not qualified to offer expert

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testimony as to the medical cause of injuries.”).

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There is no competent evidence from Plaintiff to refute competent evidence from

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Defendants’ experts to the effect that no act or omissions of Defendants caused or

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worsened Plaintiff’s infection or caused other injury to Plaintiff. See Cooper v. U.S., 903

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F.Supp. 953, 958 (D.S.C. 1995) (in a case in which plaintiff must produce expert's opinion

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at trial in order to prevail and defendant produces expert in its favor on motion for summary

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judgment and plaintiff fails to prove contrary expert in opposition to that motion, there is no

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genuine issue to be tried by jury); see also Cooper v. McAlpine 2010 WL 760703 *7

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(E.D.Cal. March 4, 2010) (citing Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th

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Cir. 2008)) (in addition to demonstrating deliberate indifference, in a § 1983 action, the

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plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of

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the claimed injury); see also Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176,

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1188–1189 (11th Cir.1994) (holding “[a]n inmate who complains that delay in medical

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treatment rose to a constitutional violation must place verifying medical evidence in the

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record to establish the detrimental effect of delay in medical treatment to succeed.”). The

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medical evidence before the Court fails to show that the Plaintiff suffered any significant

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injury caused by a delay in treatment. See House v. New Castle County, 824 F.Supp. 477,

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485 (D.Md. 1993) (holding plaintiff's conclusory allegations insufficient to maintain claim).

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It is also noted, as held in Estelle, 429 U.S. at 107, a complaint that medical

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personnel have been negligent in diagnosing or treating a medical condition does not state

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a valid claim of medical mistreatment under the Eighth Amendment. Here the Plaintiff has

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shown at most a failure to meet the standard of care, not deliberate indifference causing

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him injury. “Although the Constitution does require that prisoners be provided with a certain

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minimum level of medical treatment, it does not guarantee to a prisoner the treatment of

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his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir.1988). A disagreement as to the

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proper treatment to be received does not in and of itself state a constitutional violation.

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Mistakes of medical judgment are not subject to judicial review in a § 1983 action. Russell
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v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975).

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“There is no genuine issue of material fact on motion for summary judgment if

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opposing party fails to offer evidence sufficient to establish existence of element essential

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to that party's case.” Naliielua v. State of Hawaii, D.Hawai'i, 795 F.Supp. 1015, 1017

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(D.Hawaii 1991) (citing Celotex Corp., 477 U.S. at 322). While causation is normally a

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question of fact for the jury, it becomes an issue of law where under the undisputed facts

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reasonable minds could not differ on the outcome. Iolab Corp. V. Seaboard Sur. Co. 15

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F.3d 1500, 1506, fn.4, (9th Cir. 1994.) That is the case here, where Plaintiff has no

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competent evidence of deliberate indifference or causation.

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Here, the Defendants have carried their burden of demonstrating to the Court that

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there is no genuine issue of material fact on the issue of deliberate indifference and injury

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causation. Plaintiff has failed to demonstrate a genuine issue of material facts as to this

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element of his § 1983 claim for deliberate indifference. On such a claim Plaintiff bears the

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burden at trial. Therefore, no viable § 1983 claim has been presented and summary

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judgment is appropriate on this claim.

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IV.

CONCLUSIONS AND ORDER

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Based on the foregoing, it is HEREBY ORDERED that

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Defendants’ motion for summary judgment, filed February 1, 2012, is
GRANTED in full;

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2.

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The Clerk of Court is directed to enter judgment in favor of Defendants and
against Plaintiff; and

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3.

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The Clerk of Court is directed to close this action.

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IT IS SO ORDERED.

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Dated:
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March 28, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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