McCoy v. Garikaparthi et al

Filing 69

FINDINGS and RECOMMENDATIONS Regarding Defendants' 58 Motion for Summary Judgment signed by Magistrate Judge Barbara A. McAuliffe on 2/26/2019. Referred to Judge Dale A. Drozd. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LaKEITH L. McCOY,

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Plaintiff,

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v.
GARIKAPARTHI, et al,

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Defendants.

Case No. 1:13-cv-01495-DAD-BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
(ECF No. 58)
FOURTEEN (14) DAY DEADLINE

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I.

Introduction
Plaintiff LaKeith L. McCoy (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against

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Defendants Garikaparthi, Steiber, Keeler, and Chavez (“Defendants”) for violation of Plaintiff’s

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Eighth Amendment rights arising from the alleged deprivation of adequate food.
Currently before the Court is Defendants’ motion for summary judgment, filed April 19,

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2018.1 (ECF No. 58.) Plaintiff filed his opposition on July 30, 2018, (ECF No. 64), and

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Defendants filed their reply and objections on August 28, 2018, (ECF Nos. 67, 68). For the

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reasons set forth below, the Court recommends that Defendants’ motion for summary judgment

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be granted.

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Concurrent with the motion, Plaintiff was provided with notice of the requirements for opposing a motion for
summary judgment. (ECF No. 41, p. 40.); see Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154
F.3d 952, 957 (9th Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988).

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II.

Legal Standard
Summary judgment is appropriate when the pleadings, disclosure materials, discovery,

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and any affidavits provided establish that “there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is

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one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a

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reasonable [trier of fact] could return a verdict for the nonmoving party.” Id.

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The party seeking summary judgment “always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of the pleadings,

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

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies

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depending on whether the issue on which summary judgment is sought is one in which the

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movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty

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Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at

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trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for

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the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will

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have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an

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absence of evidence to support the nonmoving party’s case.” Id.

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If the movant satisfies its initial burden, the nonmoving party must go beyond the

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allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative

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evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th

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Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not suffice

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in this regard. Id. at 929; see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475

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U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its

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opponent must do more than simply show that there is some metaphysical doubt as to the material

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facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of

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fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S.
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at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In resolving a summary judgment motion, “the court does not make credibility

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determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he

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evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn

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in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the

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nonmoving party must produce a factual predicate from which the inference may reasonably be

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drawn. See Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d,

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810 F.2d 898 (9th Cir. 1987).

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In arriving at these findings and recommendations, the Court carefully reviewed and

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considered all arguments, points and authorities, declarations, exhibits, statements of undisputed

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facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of

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reference to an argument, document, paper, or objection is not to be construed to the effect that

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this Court did not consider the argument, document, paper, or objection. This Court thoroughly

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reviewed and considered the evidence it deemed admissible, material, and appropriate.

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III.

Discussion

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A.

Evidentiary Objections

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Defendants object to certain of Plaintiff’s evidence, statements, and opinions submitted in

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opposition to Defendants’ motion for summary judgment. As noted above, not every objection

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will be addressed by the Court individually, as doing so is neither necessary nor is that the

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practice of this Court in the summary judgment context. For the sake of clarity and to the extent

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it is appropriate, certain individual objections have been addressed by the Court below. Other

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objections are better dealt with here, in general terms.

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The hearsay objections are overruled. Declarations which contain hearsay are admissible

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for summary judgment purposes if they can be presented in admissible form at trial. Fonseca v.

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Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 2004). Furthermore, “[i]f the

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significance of an out-of-court statement lies in the fact that the statement was made and not in

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the truth of the matter asserted, then the statement is not hearsay.” Calmat Co. v. U.S. Dep’t of

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Labor, 364 F.3d 1117, 1124 (9th Cir. 2004). At this stage, the Court did not find the hearsay
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objections raised by the Defendants to be preclusive of the evidence submitted.
Finally, given the Court’s duty to determine whether there exists a genuine dispute as to

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any material fact, objections to evidence as irrelevant or lacking in foundation are both

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unnecessary and unhelpful. See e.g., Carden v. Chenega Sec. & Protections Servs., LLC, No.

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CIV 2:09-1799 WBS CMK, 2011 WL 1807384, at *3 (E.D. Cal. May 10, 2011); Arias v.

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McHugh, No. CIV 2:09-690 WBS GGH, 2010 WL 2511175, at *6 (E.D. Cal. Jun. 17, 2010);

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Tracchia v. Tilton, No. CIV S-062919 GEB KJM P, 2009 WL 3055222, at *3 (E.D. Cal. Sept. 21,

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2009); Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006).

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B.

Undisputed Material Facts (“UMF”)2

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Plaintiff, LaKeith McCoy, claims he has an allergy to eggs and that he was being

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denied adequate food because he did not receive a dietary supplement from his primary care

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physician, Defendant Garikaparthi, or a food substitution from kitchen supervisors, Defendants

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Chavez, Keeler, and Steiber. Plaintiff also claims that other portions of his meals were

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contaminated with eggs. (ECF No. 10, First Amended Complaint (“FAC”) pp. 4–9.)

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Plaintiff claims that his trays would come with the eggs mixed in with or on top of

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other food items. He claims that this prevented him from eating those other food items and he

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was denied an adequate meal. (FAC pp. 4–7.)

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Plaintiff was housed in a security housing unit, so his food trays were delivered to

him by custody staff in his cell. (Pl.’s Dep. 26:7–9, 57:6–14; Chavez Decl. ¶ 4; Keeler Decl. ¶ 3.)

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Defendant Garikaparthi did not prepare, serve, or deliver inmate food trays, and

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did not personally witness any cross contamination of Plaintiff’s food trays. Kitchen supervisors

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Defendants Chavez, Keeler, and Steiber also did not prepare, serve, or deliver inmate food trays,

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and they did not personally witness any cross contamination of Plaintiff’s food trays.

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(Garikaparthi Decl. ¶¶ 15, 20; Keeler Decl. ¶ 4; Steiber Decl. ¶ 4; Chavez Decl. ¶ 3; see also Pl.’s

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Dep. 69:20–25, 70:1–16.)

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See Defendants’ Statement of Undisputed Facts, (ECF No. 58-3), and Plaintiff’s Opposing
Statement of Undisputed Material Facts, (ECF No. 64, pp. 10–16). Unless otherwise indicated,
disputed and immaterial facts are omitted from this statement and relevant objections are
overruled.
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Plaintiff’s medical records do not reflect that he was ever tested and officially

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diagnosed with an egg allergy, but do contain notes regarding Plaintiff’s egg allergy. (Feinberg

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Decl. ¶ 7; Garikaparthi Decl. ¶ 9; see also Pl.’s Dep. 29:10–17, 32:5–11; ECF No. 64 p. 21–23,

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Pl.’s Opp’n, Ex. A.)

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The California Department of Corrections and Rehabilitation (“CDCR”) provides

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all inmates with a feeding program that assures they receive an adequate diet. This is

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accomplished by establishing a food control program based upon a ration of each food item

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sufficient in quantity to maintain an adequate diet and assure a menu pattern which is acceptable

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to the inmate population. (DOM § 51130.21; Chavez Decl. ¶ 9.)

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The parameters and qualifications for inmates to receive dietary supplements and

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special diets is established through the inmate health care policies and procedures. When an

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inmate requests a special diet due to a claimed food intolerance or allergy their primary care

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physician will evaluate and determine if the allergy can be properly managed by educating the

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inmate to avoid the identified food. (Feinberg Decl. ¶¶ 4, 8; Garikaparthi Decl. ¶ 5.)

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Inmates allergic or intolerant of a readily identified food will be educated to avoid

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the offending food, but no food substitution will be given. (Feinberg Decl. ¶ 4; Garikaparthi

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Decl. ¶ 7; Keeler Decl. ¶ 6; Steiber Decl. ¶ 6; Chavez Decl. ¶ 6.)

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9.

CDCR’s outpatient dietary intervention procedure states that the CDCR menu

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purposefully contains an average of 300 to 400 calories per day more than required for the

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average person. This calorie buffer allows patient-inmates to choose not to eat certain foods,

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either due to food sensitivity or general dislike, without compromising nutritional health.

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(Feinberg Decl. ¶ 5, Ex. B; Garikaparthi Decl. ¶ 4; Keeler Decl. ¶ 10; Steiber Decl. ¶ 10; Chavez

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Decl. ¶ 10.)

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Additionally, the guidelines for managing a food allergy or sensitivity state that

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prison food service staff is not required to provide inmates with any special food substitutions.

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The guidelines also state that avoiding the problem food is the inmate’s responsibility. (Keeler

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Decl. ¶ 8, Ex. B.)

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Plaintiff was told it was his responsibility to avoid foods with egg protein. (Pl.’s

Dep. 32:7–11; Keeler Decl. ¶ 8, Ex. A.)
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Plaintiff received a copy of the guidelines for managing a food allergy or

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sensitivity, which included a list of foods that contain egg protein that he should avoid. (Pl.’s

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Dep. 32:7–25, 33:1–14; Keeler Decl. ¶ 8, Ex. B.)

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Plaintiff claims he was malnourished and requested a dietary supplement. (FAC

pp. 7–9.)
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There are several factors that must be considered when determining whether or not

an inmate needs a food supplement. The need for a nourishment or supplement for moderate to

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severe protein/calorie malnutrition due to metabolic deficiency or metabolic response to

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injury/illness is evidenced by: (1) significant weight loss of ten percent or more over the prior six

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months; (2) serum albumin less than 2.5 milligrams per deciliter (mg/dL); or (3) body mass index

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(BMI) less than 18. (Feinberg Decl. ¶ 8; Garikaparthi Decl. ¶ 5.)

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Plaintiff was treated by Defendant Garikaparthi on January 3, 2013, February 5,

2013, and April 24, 2013. (Feinberg Decl. ¶ 11; Garikaparthi Decl. ¶ 11.)
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Based on Plaintiff’s weight, body mass index, and serum albumin levels during the

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time he was in the care of Defendant Garikaparthi, the treatment of Plaintiff’s food allergy was in

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compliance with the established medical services policy and procedure. (Feinberg Decl. ¶ 15;

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Garikaparthi Decl. ¶¶ 12–14, 16–17; see also Pl.’s Dep. 80:9–14, 81:25, 82:1–2.)

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Plaintiff has also been seen by various medical professionals, before and after

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Defendant Garikaparthi’s treatment, who did not provide him with a nutritional or dietary

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supplement because he did not qualify under the established inmate medical services policy and

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procedure. (Feinberg Decl. ¶ 19.)

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C.

Analysis

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

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must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

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1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

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deliberate indifference requires the plaintiff to show (1) “a ‘serious medical need’ by
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demonstrating that failure to treat a prisoner’s condition could result in further significant injury

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or the ‘unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need

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was deliberately indifferent.” Jett, 439 F.3d at 1096; Wilhelm v. Rotman, 680 F.3d 1113, 1122

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(9th Cir. 2012).

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Deliberate indifference is shown where the official is aware of a serious medical need and

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fails to adequately respond. Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1018 (9th Cir. 2010).

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Deliberate indifference is a high legal standard. Simmons, 609 F.3d at 1019; Toguchi v. Chung,

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391 F.3d 1051, 1060 (9th Cir. 2004). The prison official must be aware of facts from which he

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could make an inference that “a substantial risk of serious harm exists” and he must make the

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inference. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The Eighth Amendment’s prohibition against cruel and unusual punishment protects

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prisoners not only from inhumane methods of punishment but also from inhumane conditions of

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confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006) (citing Farmer, 511

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U.S. at 847, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981)) (quotation marks omitted).

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Prison officials must ensure that inmates receive adequate food, clothing, shelter, medical care

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and personal safety. Farmer, 511 U.S. at 832.

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“Adequate food is a basic human need protected by the Eighth Amendment.” Keenan v.

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Hall, 83 F.3d 1083, 1091 (9th Cir. 1996). The Eighth Amendment requires only that prisoners

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receive food that is adequate to maintain health. LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.

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1993). However, the Ninth Circuit has found that “[t]he sustained deprivation of food can be

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cruel and unusual punishment when it results in pain without any penological purpose.” Foster v.

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Runnels, 554 F.3d 807, 812–13 (9th Cir. 2009) (finding the denial of sixteen meals in twenty-

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three days a sufficiently serious deprivation for Eighth Amendment purposes).

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In their motion for summary judgment, Defendants contend that Plaintiff’s self-diagnosed

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egg allergy did not qualify him for a food substitution or supplement, based on the established

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inmate medical services policies and procedures. Specifically, Defendants argue that Defendant

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Garikaparthi’s treatment was within the standard of care and not deliberately indifferent to any

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serious medical need, that CDCR’s heart healthy menu provided Plaintiff with enough calories
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for adequate nutrition even without eating eggs and egg protein, and that Defendants Chavez,

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Keeler, and Steiber did not personally prepare, serve, deliver, contaminate, or witness

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contamination of Plaintiff’s food trays. In addition, Defendants argue that they are entitled to

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qualified immunity. (ECF No. 58-2.)

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Plaintiff, in turn, argues that his chief complaint is that the food he receives is in smaller

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portions than required by the CDCR feeding program, and that the food was contaminated with

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eggs. As a result, he cannot eat a majority of food on the tray, and was therefore in need of a

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dietary supplement. (ECF No. 64.) In reply, Defendants argue that Plaintiff primarily relies upon

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the allegations of his complaint to support his position, and that he has otherwise failed to provide

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evidence to support his contentions. (ECF No. 67.)
1.

Defendant Garikaparthi

Plaintiff’s argument that Defendant Garikaparthi denied him medical care by failing to

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order him a dietary supplement or substitution in response to his egg allergy is unavailing. First,

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although there is some dispute regarding whether Plaintiff was officially diagnosed by a medical

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professional with an egg allergy, the undisputed evidence demonstrates that Defendant

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Garikaparthi treated Plaintiff as though he had received an official diagnosis. (UMF Nos. 5, 11,

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12, 16.) Accordingly, the undisputed evidence further shows that Defendant Garikaparthi

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followed CDCR policy while treating Plaintiff’s egg allergy and in reviewing Plaintiff’s medical

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records, and under those parameters Plaintiff did not qualify for a dietary supplement. (UMF

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Nos. 7, 16, 17.)

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Though Plaintiff argues that his weight dropped as low as 139 pounds following the

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identification of his egg allergy, following a peak weight of 185 pounds when he entered the

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prison system, Plaintiff does not provide the date at which his weight dropped to 139, or the date

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that he entered the prison system. (See ECF No. 64, p. 18.) Plaintiff also does not provide any

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evidence that even at a weight of 139 pounds, and his claimed height of “nearly 6’ 0” tall,” that

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his BMI calculation dropped low enough to qualify him for a dietary supplement. (See id.)

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Rather, the undisputed evidence demonstrates that Defendant Garikaparthi considered the
relevant policies, conducted an assessment based on Plaintiff’s medical records and health at the
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time of his treatment of Plaintiff, and determined that Plaintiff did not qualify for a supplement.

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(UMF No. 16.) Specifically, Plaintiff’s medical records state that he was treated by Defendant

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Garikaparthi on January 3, 2013, February 5, 2013, and April 24, 2013, only. (Garikaparthi

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Decl., Ex. A.) During those appointments, Plaintiff’s height was recorded as 69 inches, and his

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weight was recorded at 146, 149, and 151 pounds, and Plaintiff’s BMI was calculated at 21.56,

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22, and 22.3, respectively. (Id.) Defendant Garikaparthi states that, based on Plaintiff’s records,

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Plaintiff’s BMI never dropped below the threshold of 18, and he did not have a substantial weight

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loss over a period of six months, as required under CDCR policy. (Id. ¶ 16.) Thus, based on

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Plaintiff’s medical history, medical procedures, and Defendant Garikaparthi’s training,

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knowledge, and expertise, it was determined that Plaintiff did not qualify for a supplement for his

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food allergy pursuant to CDCR outpatient dietary intervention procedures. (Id. ¶¶ 16, 18.)

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Under Federal Rule of Evidence 701, Plaintiff, a layperson, is not qualified to offer

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medical opinions or conclusions based on his symptoms or the course of his medical treatment.

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Plaintiff’s unsupported opinion that he required a dietary supplement or substitution, or that he

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was being provided an insufficient quantity of food, is not admissible. Only an expert witness

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with specialized knowledge may determine whether Defendant Garikaparthi’s conduct was within

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the appropriate standard of care, whether Defendant’s actions or failure to act were the cause of

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any harm, or if the denial of a dietary supplement caused Plaintiff harm.

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Plaintiff presents only his own unsupported assertions that Defendant Garikaparthi acted

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unreasonably in failing to order him a dietary supplement. At most, Plaintiff’s declarations raise

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a question as to whether there was a lapse in Defendant Garikaparthi’s professional judgment. In

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other words, there may be an issue of fact as to whether Defendant acted negligently. However,

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well-established precedent is clear that any perceived lapse of Defendant’s professional judgment

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in this context would not equate to an Eighth Amendment violation. See Toguchi, 391 F.3d at

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1057 (“Mere negligence in diagnosing or treating a medical condition, without more, does not

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violate a prisoner’s Eighth Amendment rights.”) (citation omitted).

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This evidence, construed in favor of Plaintiff, is insufficient to raise a genuine dispute for
trial as to whether Defendant “disregarded an excessive risk to inmate health and safety” as is
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required to show deliberate indifference. See Toguchi, 391 F.3d 1057. The Court concludes that

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there is no genuine issue of material fact preventing summary judgment in favor of Defendant

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Garikaparthi concerning the failure to order Plaintiff a dietary supplement. Defendant

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Garikaparthi treated Plaintiff the same as a patient with an official diagnosis of an egg allergy,

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considered the applicable factors for inmates to receive dietary supplements under CDCR policy,

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and based on Plaintiff’s medical history and Defendant Garikaparthi’s professional expertise

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determined that a supplement was not necessary. Therefore, summary judgment should be

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granted as to Defendant Garikaparthi.

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Defendants Chavez, Keeler, and Steiber

With respect to Defendant Chavez, Keeler, and Steiber, Plaintiff has failed to provide

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evidence, beyond his bare assertions, that these Defendants were personally involved in the

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preparation, service, or delivery of his food trays. At most, the undisputed evidence shows that

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Defendants Chavez, Keeler, and Steiber supervised kitchen staff, not that they had any personal

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involvement in food service or preparation. (UMF No. 4.) Again, Plaintiff’s bare allegations,

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without any foundation, that Defendants personally witnessed cross-contamination of his food is

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purely speculative, and unsupported by evidence for a reasonable fact finder to consider. Finally,

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CDCR policy provides that food service staff is not responsible for providing dietary supplements

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to inmates with food restrictions, and Defendants cannot be held liable on that basis. (UMF No.

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10.)

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Based on the foregoing, the Court finds that Plaintiff has failed to raise a genuine dispute

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for trial regarding his claims against Defendants Chavez, Keeler, and Steiber. There is no

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evidence to demonstrate an actual link between the Defendants’ actions or inactions and the

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alleged deprivation of inadequate food or contaminated food, or that Defendants acted in a

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manner that was out of compliance with CDCR policy with respect to dietary supplements.

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2.

Qualified Immunity

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Defendants also assert that the Court should grant summary judgment on the basis of

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qualified immunity. However, the Court finds that this argument need not be reached, based

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upon the above determination regarding the undisputed facts in this case.
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IV.

Conclusion and Recommendations
For the reasons explained above, IT IS HEREBY RECOMMENDED that Defendants’

motion for summary judgment, (ECF No. 58), be granted.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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fourteen (14) days after being served with these Findings and Recommendations, the parties may

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file written objections with the court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file

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objections within the specified time may result in the waiver of the “right to challenge the

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magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 26, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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