Powell v. Madden, et al.

Filing 74

ORDER Granting Motion for Summary Judgment 69 , signed by Chief Judge Ralph R. Beistline on 10/17/14. CASE CLOSED. Dismissal counts as a "strike" under 42 U.S.C. § 1915(g). (Verduzco, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TONY EDWARD POWELL,
Case No. 1:13-cv-00057-RRB
Plaintiff,
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT AT DOCKET 69

vs.
MADDEN, et al.,
Defendants.

I.

PENDING MOTION
At Docket 69 Defendant United States of America (“Government”) moved for

summary judgment. Plaintiff has opposed the motion.1 Although the time therefore has
lapsed, the Government has not filed a reply. The Court has determined that oral argument
would not materially assist in the resolution of the issues presented. Accordingly, the matter
is submitted for decision on the moving and opposing papers.2
II.

BACKGROUND
Tony Edward Powell, a federal prisoner appearing pro se, initiated this civil rights

action under 42 U.S.C. § 1983. In his complaint Powell alleged three causes of action arising
out if his confinement at USP–Atwater, California. First, a negligence action based upon a
1

Docket 73.

2

L. R. 230(l).

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
Powell v. Madden, 1:13-cv-00057-RRB – 1

slip and fall incident that occurred while Powell was exiting the prison dining facility. Second,
deliberate indifference by various medical personnel in either refusing or failing to properly
treat the injuries Powell suffered in the slip and fall incident. Third, correctional authorities
improperly confiscated and refused to return to Powell certain documents related to litigation
unrelated to the slip and fall incident.
In screening the complaint this Court permitted Powell to proceed on his slip and fall
negligence claim under the Federal Tort Claims Act (“FTCA”) as against Randy Madan
(incorrectly named as Madden in the Complaint), Elijah George, and Jason Heck based upon
otherwise applicable California law. Powell was also permitted to proceed on his medical
indifference claim against Lourdes Mettri, Jon Franco, M.D. and Rodrigo Orgues. All other
claims and parties were dismissed.3
The Government [substituted for Madan, George, and Heck4], Mettri, Franco, and
Orgues answered the Complaint.5
Defendants Mettri, Franco, and Rodrigo Orgues moved for dismissal of the claims
against them for failure to exhaust administrative remedies.6 After the matter was fully briefed

3

Docket 11.

4

28 U.S.C. § 2679(d)(1).

5

Docket 28.

6

Docket 44.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
Powell v. Madden, 1:13-cv-00057-RRB – 2

by the parties, the Court granted the motion and dismissed this claims against Lourdes Mettri,
Jon Franco, M.D. and Rodrigo Orgues.7
In its Scheduling and Planning Order the Court required each party to file a preliminary
statement of issues and a final, revised witness list not later than August 15, 2014.8 Although
the Government complied with that Order,9 Powell has neither complied with, nor requested
relief from, the requirements of that order.
III.

STANDARD/APPLICABLE LAW
Summary judgment is appropriate if, when viewing the evidence in the light most

favorable to the non-moving party, there are no genuine issues of material fact and the moving
party is entitled to judgment in its favor as a matter of law.10 Support and opposition to a motion
for summary judgment is made by affidavit made on personal knowledge of the affiant,
depositions, answers to interrogatories, setting forth such facts as may be admissible in
evidence.11 In response to a properly supported motion for summary judgment, the opposing
party must set forth specific facts showing that there is a genuine issue for trial.12 The issue
of material fact required to be present to entitle a party to proceed to trial is not required to be

7

Docket 59.

8

Docket 33.

9

Dockets 67 and 68.

10

Fed. R. Civ. P. 56(c); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc); Taylor v. List, 880 F.2d 1040, 1044 (9th Cir. 1989).
11

Fed. R. Civ. P. 56(e).

12

Id.; Henderson v. City of Simi Valley, 305 F.3d 1052, 1055–56 (9th Cir. 2002).

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
Powell v. Madden, 1:13-cv-00057-RRB – 3

resolved conclusively in favor of the party asserting its existence; all that is required is that
sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth at trial. In order to show that a genuine
issue of material fact exists a nonmoving plaintiff must introduce probative evidence that
establishes the elements of the complaint.13 Material facts are those which may affect the
outcome of the case.14 A dispute as to a material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving party.15 "Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, [when] he is ruling on a motion for summary judgment."16 The
evidence of the non-moving party is to be believed and all justifiable inferences are drawn in
his favor.17 A court generally accepts as true statements made under oath.18 However, this
rule does not apply to conclusory statements unsupported by underlying facts,19 nor may the
court draw unreasonable inferences from the evidence.20 The moving party has the burden

13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).

14

Id.

15

Id.

16

Id. at 255; Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1036 (9th
Cir. 2005).
17

Andderson, 477 U.S. at 255.

18

Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005).

19

Walker v. Sumner, 917 F.2d 382, 387 (9th Cir. 1990).

20

See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
(continued...)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
Powell v. Madden, 1:13-cv-00057-RRB – 4

of showing there is no genuine issue of material fact; therefore, he bears the burden of both
production and persuasion.21
The moving party, however, has no burden to negate or disprove matters on which the
non-moving party will have the burden of proof at trial. The moving party need only point out
to the Court that there is an absence of evidence to support the non-moving party's case.22
There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact
could not find in favor of the party opposing the motion.23
Under the FTCA, the United States is liable for “personal injury . . . caused by the
negligent or wrongful act of any employee of the Government while acting in the course and
scope of his office or employment, under circumstances where the United States, if a private
person would be liable to the claimant in accordance where the act or omission occurred.”24
The FTCA extends to prisoners who suffer injuries as a result of the negligence of
government employees while confined in federal prisons.25

20

(...continued)
McLaughlin v. Liu, 849 F.2d 1205, 1207–1209 (9th Cir. 1988).
21

Celotex Corp. v. Catrett, 477 U.S. 317, 322–323 (1986).

22

Sluimer v. Verity, Inc., 606 F.3d 584, 586 (9th Cir. 2010); see Celotex, 477 U.S.

23

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

24

28 U.S.C. § 1346(b).

25

United States v. Muniz, 374 U.S. 150, 153–66 (1963).

at 325.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
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Under California law: “The elements of a cause of action for negligence are well
established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and]
(c) the breach as the proximate or legal cause of the resulting injury.”26 Powell bears the
burden of establishing all three elements by a preponderance of the evidence. In a slip and
fall case, Plaintiff must establish that the Defendants had actual or constructive notice of the
dangerous condition.27
IV.

DISCUSSION
For the purposes of ruling on the motion before it, the Court assumes that the

conditions alleged in the Complaint existed. That is, while Powell was exiting the dining facility
at USP–Atwater “water drenched the floor, combined with a foreign slippery substance, and
the metal frame was removed from the pea trap draining system, which caused Plaintiff to slip,
falling violently to the floor,” and that there were no “wet floor” signs warning of the danger.28
The Court further assumes that, as a result of his slip and fall, Powell suffered compensable
injuries, i.e., his injuries were not de minimis.
Initially, the Court notes that by failing to timely serve and file a statement of preliminary
issues and final witness list Powell has failed to comply with the Court’s Scheduling and

26

Ladd v. County of San Mateo, 911 P.2d 496, 498 (Cal. 1996) (emphasis in the
original) (citations and internal quotation marks omitted); see Hayes v. County of San Diego,
736 F.3d 1223, 1231 (9th Cir. 2013) (same).
27

See Moore v. Wal-Mart Stores, Inc., 3 Cal. Rptr. 813, 816 (Cal. App. 2003) (“In the
absence of actual or constructive notice of the dangerous condition, the owner is not liable.”).
28

Docket 1, p. 4

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Planning Order. In that Order the Court made clear that the only witnesses that would be
permitted to testify at trial were those witnesses disclosed.29 Powell has not sought relief from
the requirements of that order. This Court acknowledges and adheres to the general rule that
prisoner pro se pleadings are given the benefit of liberal construction.30 On the other hand,
while this Court must liberally construe papers filed by pro se parties, pro se parties must
none-the-less follow the applicable rules of practice and procedure, including the orders of the
court.31 Thus, the only person Powell may call as a witness at trial is himself and the three
Defendants.
Turning to the merits of the motion, the Government submitted a statement of
undisputed facts, which as relevant to the motion sub judice provided as follows:32
3. Plaintiff asserts that all of the evidence supporting his claim is contained in
his Complaint.
* * * *
6. Plaintiff does not know who removed the grate from the floor drain.
7. Plaintiff does not know when the grate was removed from the floor drain.
8. Randy Madan, the Food Service Administrator, was off duty and not at USP
Atwater on May 12, 2012.
9. Jason Heck, a Cook Supervisor, was assigned on May 12, 2012, to
supervise the preparation of food trays for the Special Housing Unit at USP
Atwater.

29

Docket 33, p. 4 ¶ (7).

30

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
31

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
same rules of procedure that govern other litigants.”) (overruled in part on other grounds in
Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc)).
32

Docket 69-2. Paragraph numbering as used in the Statement of Undisputed Facts.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
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10. Heck did not know that the grate had been removed from the floor drain or
that there was any slippery substance on the floor near the dishwashing station
before Plaintiff fell.
11. Elijah George, then the Assistant Food Services Administrator at USP
Atwater, was the senior official on duty in the food services department on May
12, 2012.
12. George did not know that the grate had been removed from the floor drain
or that there was any slippery substance on the floor near the dishwashing
station before Plaintiff fell.
In his opposition, Powell contends that the declarations submitted in support of the
motion are false.33 In support of this contention Powell argues that statements from both staff
and inmates, as well as video footage, will prove this alleged falsity. Except as noted in the
immediately following paragraph, Powell does not present any of this alleged evidence.34 Nor
has Powell invoked the provisions of Federal Rule of Civil Procedure 56(f), which permits the
court, upon application by the non-moving party, supported by affidavit, to either deny the
motion for summary judgment or grant a continuance to permit affidavits to be obtained,
depositions taken, or other discovery conducted. Failure to comply with the requirements of
Rule 56(f) is a proper ground for proceeding to summary judgment.35

33

The Court notes that Powell did not file a separate response to the State’s
Statement of Undisputed Facts as required by L.R. 260(b). Construing Powell’s opposition
to the motion liberally, despite the technical noncompliance with the rules, the Court
nonetheless considers Powell’s opposition as the functional equivalent of the required
statement to the extent it presents factual matter supported by competent evidence.
34

The Court also notes that in his deposition, although inquiry was made by counsel
for the State concerning this evidence, Powell specifically and affirmatively refused to identify
any of the evidence upon which he now attempts to rely in opposing summary judgment.
35

Family Home and Fin. Ctr. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827
(9th Cir. 2008).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
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Powell did append the declarations of two individuals who were previously incarcerated
at USP–Atwater. Even considering those declarations would not alter the outcome on the
motion before the court. The statement by Miguel Kercherval does nothing more than support
the fact that a dangerous condition existed from time to time, but does not address the date
in question.36 Thus, it is of no probative value. Particularly in light of the fact that, in deciding
the motion before it, this Court has assumed that the condition described in the complaint is
a “fact.” The declaration of Victor Wight presents a somewhat different picture. Wright
contends that he had “witnessed, Mr. Madan, Mr. George, and Mr. Heck have [sic] to carefully
walk over water when going over to the dish room . . ..”37 Wright does not identify the date on
which he made this observation; nor does he claim to have been a percipient witness to the
incident underlying Powell’s claim. Wright also stated that “[a]nybody that was at the Atwater
(USP) has knowledge of the conditions, staff and inmate.”
Even if considered, neither declaration addresses the narrow question presented in the
pending motion: that Randy Madan, Elijah George, and Jason Heck, or any of them, had
actual knowledge of the dangerous condition at the time that Powell slipped and fell.
Madan’s uncontroverted declaration establishes that he was not present at USP-Atwater on
the date in question.38 Thus, Madan could not possibly have any liability. Both George and
Heck have stated under penalty of perjury:
36

Docket 73, p. 10.

37

Docket 73, p. 8.

38

Docket 69-4.

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4. Inmate workers are not supposed to remove the grate a covering the
floor drain while inmates are eating in the dining facility. I was not aware that
the grate was removed prior to Plaintiff's fall, nor was I aware of any slippery
substance on the floor in front of the dish station. Had I been made aware of
this situation, I would have immediately instructed inmates to replace the grate,
and to mop up the slippery substance.39
Therefore, under California law neither George nor Heck have any liability. Other than an
unsupported allegation that they are “lying,” Powell has not presented any evidence to refute
those declarations.
While this Court is not unmindful of the disparity in the resources available to a
prisoner as compared to those available to the State, that disparity does not lessen the burden
that the law places on a prisoner, as the plaintiff, to establish by competent evidence the
elements of the cause of action upon which liability is necessarily predicated. Nor, as noted
above, does it relieve a prisoner of the procedural requirements for proceeding in this Court.
Reduced to its essence, Powell relies on the allegations in his complaint as well as in his
affidavit—conclusory, self-serving, and lacking supporting evidence—which collectively fail
to establish a genuine issue of material fact sufficient to defeat summary judgment in favor
of the State.40

39

Docket 69-5 (George Declaration); Docket 69-6 (Heck Declaration).

40

Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012) (quoting
FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997)); United States v.
$133,420.00 in U.S. Currency , 672 F.3d 629, 638 (9th Cir. 2012);
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
Powell v. Madden, 1:13-cv-00057-RRB – 10

V.

ORDER
For the reasons set forth above, the motion for summary judgment by Defendant

United States of America, substituted for Randy Madan, Elijah George, and Jason Heck, at
Docket 69 is GRANTED.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of Plaintiff’s claims, or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further. Therefore, any
appeal from this decision would be frivolous or taken in bad faith.41 Accordingly, Plaintiff’s in
forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter final judgment dismissing this action in its
entirety as against all defendants, with prejudice, which states that the dismissal counts as a
“strike” under 42 U.S.C. § 1915(g).
IT IS SO ORDERED this 17th day of October, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

41

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002).
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AT DOCKET 69
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