Bullock v. Wasco State Prison Medical

Filing 91

ORDER adopting 84 FINDINGS AND RECOMMENDATION, granting in part and denying in part 62 Motion for Summary Judgment, denying 78 Motion for Summary Judgment and referring matter back to Magistrate Judge for evidentiary hearing signed by District Judge Dale A. Drozd on 3/28/2018. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GORDON BULLOCK, 12 13 No. 1:14-cv-00092-DAD-EPG Plaintiff, 17 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR EVIDENTIARY HEARING 18 (Doc. Nos. 62, 78, 84) 14 15 16 v. BROCK SHEELA, et al., Defendants. 19 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 21 action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 22 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On February 28, 2018, the assigned magistrate judge issued findings and 24 recommendations recommending that: (1) plaintiff’s motion for summary judgment (Doc. No. 25 78) be denied; (2) defendants’ summary judgment motion due to plaintiff’s failure to exhaust 26 administrative remedies prior to filing suit (Doc. No. 62) be granted in part and denied in part; 27 and (3) defendants be given twenty-one days from the date any order adopting is entered to 28 request an evidentiary hearing on the issue of whether plaintiff properly submitted an inmate 1 1 grievance that prison officials failed to process. (Doc. No. 84.) The findings and 2 recommendations were served on the parties, and contained notice that objections thereto were to 3 be filed within twenty-one days. 4 Defendants filed objections to the findings and recommendations on March 21, 2018. 5 (Doc. No. 88.) Therein, defendants argue plaintiff knew he had previously suffered a heart attack 6 by December 3, 2013, at the latest, and knew he had previously contracted Valley Fever by 7 January 14, 2014, at the latest, based on the allegations of his original complaint, as well as those 8 made in his second and third amended complaints. (See Doc. No. 88 at 3–4.) Because of this, 9 defendants’ contend his purported inmate appeal filed March 7, 2014 was untimely. (Id. at 4.) 10 As the magistrate judge observed in the findings and recommendations, however, plaintiff 11 testified at his deposition that he did not become aware of the harm he had suffered until February 12 14, 2014, which would render his March 7, 2014 inmate appeal timely. (Doc. No. 84 at 10.) 13 Defendants argue that plaintiff’s deposition testimony may not contradict the statements in his 14 prior complaints. (Doc. No. 88 at 3–4) (citing Van Asdale v. International Game Technology, 15 577 F.3d 989 (9th Cir. 2009)). 16 Van Asdale, however, concerned application of the “sham affidavit” rule, which holds 17 that, as a general rule, “a party cannot create an issue of fact by an affidavit [submitted in defense 18 of a summary judgment motion] contradicting his prior deposition testimony.” 577 F.3d at 998. 19 The issue before this court is not the same as that presented in Van Asdale, since here plaintiff’s 20 deposition testimony and not a subsequently-drafted affidavit, creates the genuine dispute of 21 material fact. Additionally, the Ninth Circuit has noted that the “sham affidavit” rule “should be 22 applied with caution,” since “[a]ggressive invocation of the rule . . . threatens to ensnare parties 23 who may have simply been confused during their deposition testimony and may encourage 24 gamesmanship by opposing attorneys.” Id. (quoting Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 25 1255, 1264 (9th Cir. 1993)). Thus, in order to invoke the rule, the court must make a factual 26 finding that the contradicting evidence was indeed a “sham,” and must conclude that the 27 inconsistency is not the result of “an honest discrepancy, a mistake, or newly discovered 28 evidence.” Id. at 998–99 (quoting Messick v. Horizon Indus., 62 F.3d 1227, 1231 (9th Cir. 2 1 1995)). What defendants propose here is, in essence, a “sham testimony” rule, holding that 2 deposition testimony may not deviate from prior pleadings.1 No authority for such a rule has 3 been presented to this court. Moreover, no finding was made or should be made here that 4 plaintiff’s deposition testimony was a sham. The veracity of plaintiff’s testimony will be tested at 5 an evidentiary hearing in this case, which the magistrate judge has already scheduled for May 17, 6 2018. (See Doc. No. 87.) This is entirely appropriate. See Anderson v. Liberty Lobby, Inc., 477 7 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to 8 weigh the evidence and determine the truth of the matter but to determine whether there is a 9 genuine issue for [further factual resolution].”). Defendants also contend they are entitled to summary judgment on plaintiff’s retaliation 10 11 claim against defendant Sheela. Particularly, defendants assert plaintiff did not dispute their 12 statement of undisputed material facts, one of which was that plaintiff never submitted an inmate 13 grievance alleging defendant Sheela had retaliated against him. (Doc. No. 88 at 5.) In 14 concluding there was a genuine dispute of material fact as to this issue, the magistrate judge based 15 the finding and recommendations on the evidence actually presented—plaintiff’s deposition 16 testimony—rather than defendants’ characterization of that evidence in its statement of facts. 17 (Doc. No. 84 at 11.) This too is entirely appropriate, and provides no grounds on which to reject 18 the magistrate judge’s findings. Bischoff v. Brittain, 183 F. Supp. 3d 1080, 1084 (E.D. Cal. 2016) 19 (“The court’s decision [on a summary judgment motion] relies on the evidence submitted rather 20 than how that evidence is characterized in the statements.”); Williams v. City of Medford, No. 09- 21 3026-CL, 2011 WL 5842768, at *3 (D. Ore. Oct. 19, 2011) (noting the court only considers 22 23 24 25 26 27 28 1 Aside from the dissimilarities between the present case and Van Asdale, the court notes that only one of the three complaints defendants refer to could be considered evidence, because neither the second nor third amended complaint was signed by plaintiff under penalty of perjury. See Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (verified complaint signed under penalty of perjury which states specific facts admissible in evidence and based on personal knowledge may be used as affidavit opposing summary judgment). The verified complaint states “I put in Lots of Medical request never Saw Doctor until 12-2-13 at Soledad where he Informed me of High blood pressure and Put on Medcation for my Heart.” (Doc. No. 1 at 2) (typographical errors in original). This allegation does not state that plaintiff was told on December 2, 2013 that he had previously suffered a heart attack. 3 1 evidence submitted, not a party’s characterizations of that evidence), report and recommendation 2 adopted, 2011 WL 5842762 (D. Ore. Nov. 21, 2011). 3 4 5 Plaintiff has also filed objections, essentially opposing defendants’ objections and reiterating what the magistrate judge had already recommended. (Doc. No. 89.) In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 6 conducted a de novo review of this case. Having carefully reviewed the entire file, including the 7 objections of both parties, the undersigned concludes the findings and recommendations are 8 supported by the record and by proper analysis. 9 10 11 12 Accordingly: 1. The findings and recommendations issued February 28, 2018 (Doc. No. 84) are adopted in full; 2. Defendants’ motion for summary judgment due to plaintiff’s failure to exhaust 13 administrative remedies prior to filing suit (Doc. No. 62) is denied in part and granted in 14 part; 15 3. Plaintiff’s motion for summary judgment (Doc. No. 78) is denied; and 16 4. This action is referred back to the assigned magistrate judge for further proceedings, 17 including an evidentiary hearing on the issue of whether plaintiff properly submitted an 18 inmate grievance that prison officials failed to process. 19 20 IT IS SO ORDERED. Dated: March 28, 2018 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 4

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