Galik v. Namgalama et al

Filing 61

ORDER signed by Judge William B. Shubb on 2/6/2012 ORDERING 37 that Dr. Nangalama's motion to dismiss, Dr. Duc's motion to dismiss plaintiff's equal protection claim against him, and Dr. Duc's motion for summary judgment on plai ntiff's due process claim against him be, and the same hereby are, GRANTED; AND IT IS FURTHER ORDERED that Dr. Duc's motion to dismiss for failure to exhaust administrative remedies and Dr. Duc's motion for summary judgment on plaintiff's Eighth Amendment claim against him be, and the same hereby are, DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN GALIK,
NO. CIV. 2:09-0152 WBS KJN (PC)

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Plaintiff,
ORDER

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v.

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A. NANGALAMA, et al.,

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Defendants.

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/

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----oo0oo---Plaintiff Kevin Galik, a prisoner proceeding pro se,

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brought this action pursuant to 42 U.S.C. § 1983 primarily

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alleging violations of his Eighth Amendment rights.

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was referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B), Local General Order No. 262, and Local

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Rule 302(c)(17).

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Duc filed a motion to dismiss pursuant to Federal Rule of Civil

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Procedure 12(b)(6) and, alternatively, a motion for summary

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judgment pursuant to Rule 56.

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The matter

Defendants Dr. Andrew Nangalama and Dr. Vuong

In his Findings and Recommendations, the Magistrate
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Judge recommended that the court 1) grant Dr. Nangalama’s motion

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to dismiss in its entirety; 2) grant Dr. Duc’s motion to dismiss

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plaintiff’s equal protection claim against him; 3) grant Dr.

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Duc’s motion for summary judgment on plaintiff’s due process

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claim against him; 4) deny Dr. Duc’s motion to dismiss for

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failure to exhaust administrative remedies; and 5) deny Dr. Duc’s

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motion for summary judgement on plaintiff’s Eighth Amendment

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claim against him.

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objections to the recommendation that his motion for summary

(Docket No. 53.)

Dr. Duc filed timely

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judgment be denied with respect to plaintiff’s Eighth Amendment

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claim against him.

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objections” to the Magistrate Judge’s Findings and

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Recommendations.

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Findings and Recommendations de novo.

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Fed. R. Civ. P. 72(b)(2)-(3).

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Plaintiff filed a statement of “non-

The court now reviews the Magistrate Judge’s
28 U.S.C. § 636(b)(1)(c);

Absent from the Magistrate Judge’s Findings and

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Recommendations is a discussion of whether the alleged

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deficiencies in plaintiff’s medical care amounted to “deliberate

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indifference to serious medical needs” as required to establish a

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violation of the Eighth Amendment.

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97, 104 (1976).

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intentional interference with a prisoner’s medical treatment that

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causes harm to the prisoner may rise to the level of deliberate

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indifference, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006), negligence or even gross negligence is not sufficient.

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Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

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Estelle v. Gamble, 429 U.S.

While a prison official’s delay or denial of or

Nonetheless, Dr. Duc failed to submit sufficient
evidence for the court to assess whether a genuine issue of
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material fact remains on plaintiff’s claim that the delays and

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deficiencies in his medical treatment amounted to deliberate

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indifference. Moreover, plaintiff’s claims against Dr. Duc are

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based exclusively on Dr. Duc’s review of two 602 appeal forms

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plaintiff filed regarding his medical care.

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one of the 602 appeals in his opposition to defendants’ motion,

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but neither party provided the second 602 appeal for the court to

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review.

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to determine what complaints plaintiff made about his medical

Plaintiff submitted

Without reviewing both 602 appeals, the court is unable

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care and whether his complaints addressed a current or continued

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need for treatment or only past deficiencies.

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Determining whether the 602 appeals contained

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complaints about alleged ongoing deficiencies is necessary to

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assess whether Dr. Duc violated plaintiff’s Eighth Amendment

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rights.

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deliberate indifference when they knowingly fail to respond to an

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inmate’s requests for help,” Jett, 439 F.3d at 1098, this theory

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of liability is viable only if the administrator is reviewing a

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present need for medical care and, in ignoring the need, acts in

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deliberate indifference to that need.

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While “prison administrators” can be “liable for

If, on the other hand, an administrator is reviewing

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only past conduct by subordinates that amounted to deliberate

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indifference to a serious medical need but that cannot be

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remedied at the time of the administrator’s review, the

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administrator could not be said to be acting in deliberate

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indifference to that need.

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could still have a viable claim against the administrator based

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on the administrator’s “action or inaction in the training,

In such a case, however, the prisoner

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supervision, or control of his subordinates; for his acquiescence

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in the constitutional deprivation; or for conduct that showed a

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reckless or callous indifference to the rights of others” so long

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as there is “a sufficient causal connection between the

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supervisor’s wrongful conduct and the constitutional violation.”

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Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Larez

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v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991); Hansen v.

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Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation

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marks omitted); see Jones v. Cnty. of Sacramento, No. CIV.

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2:09-1025 WBS DAD, 2010 WL 2843409, *7 (E.D. Cal. July 20, 2010)

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(discussing Ninth Circuit cases involving supervisors’ review of

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subordinates’ allegedly unconstitutional conduct and concluding

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that “the Ninth Circuit has found a supervisor’s conduct

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sufficient to establish the requisite causal link only when the

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supervisor engaged in at least some type of conduct before the

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unconstitutional incident and the supervisor knew or should have

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known that his conduct could cause the constitutional violation

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the plaintiff suffered” (emphasis in original)).1

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Dr. Duc has, for the first time, submitted both 602

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appeals in support of his Objections to the Magistrate Judge’s

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Findings and Recommendations.

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Procedure 73(b)(3) and 28 U.C.S. § 636(b)(1)(c) allow the

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district court to “receive further evidence” when resolving

Although Federal Rule of Civil

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Assuming Dr. Duc had a supervisory role over the prison
officers who allegedly failed to treat plaintiff, it does not
appear that plaintiff has submitted sufficient evidence, let
alone alleged sufficient facts in his Complaint, to establish an
Eighth Amendment claim against Dr. Duc based exclusively on his
review of past Eighth Amendment violations. See generally
Hydrick v. Hunter, --- F.3d ----, 2012 WL 89157, at *3-4 (9th
Cir. 2012).
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objections to Findings and Recommendations, the court will not

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consider new evidence at this stage.2

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Duc’s new evidence would require the court to give plaintiff an

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opportunity to respond and submit additional evidence.

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and most importantly, allowing new evidence at this stage would

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defeat the reasons that the motion is referred to the Magistrate

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Judge.

First, considering Dr.

Second,

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If this court were to consider new evidence on

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objection to the Magistrate Judge’s Findings and Recommendations,

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there would be nothing to prevent the parties from presenting a

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partial record to the Magistrate Judge, wait to see if the

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recommended decision is against them, and then present whatever

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evidence they need to overcome the defects pointed out by the

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Findings and Recommendations.

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followed, this court would be better off hearing the motion in

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the first place.

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procedure, it would neither assist the court nor make the best

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use of the magistrate judges.

If that were to be the procedure

While the parties might not object to that

Accordingly, because the court agrees with the

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Magistrate Judge that defendants have submitted insufficient

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evidence to establish the lack of a genuine issue of material

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fact on plaintiff’s Eighth Amendment claim against Dr. Duc, the

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The court recognizes that declining to consider new
evidence at this belated stage could unnecessarily require a
trial on issues that could have been resolved as a matter of law.
While nothing in the Federal Rules of Civil Procedure prevent
defendants from filling a second motion for summary judgment,
defendants would need to obtain leave of court to do so in this
case as the time for dispositive motions has passed. This court
will defer th the Magistrate Judge on the question of whether
defendant should be permitted to file a second motion in this
case.
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court will adopt the Magistrate Judge’s recommendation on that

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claim.

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Lastly, the court notes that the Magistrate Judge

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declined to address Dr. Duc’s claim of qualified immunity

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“because defendants have not met their initial burden of

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demonstrating the absence of genuine issues of material fact as

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to plaintiff’s Eighth Amendment claim.”

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17:1.)

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Court developed a mandatory two-step approach to qualified

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immunity that required a court to first determine whether,

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“[t]aken in the light most favorable to the party asserting the

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injury, do the facts alleged show the officer’s conduct violated

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a constitutional right?”

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recently, however, the Supreme Court held that a court may assume

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the existence of a constitutional violation under this first

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inquiry for purposes of the qualified immunity analysis.

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v. Callahan, 555 U.S. 223, 236 (2009).

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court assumed a constitutional violation under the first inquiry,

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the insufficient evidence prevents the court from completing the

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second inquiry, which assesses “whether the law clearly

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established that the officer’s conduct was unlawful in the

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circumstances of the case.”

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added).

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(Docket No. 53 at 16:25-

In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme

Saucier, 533 U.S. at 201.

More

Pearson

Nonetheless, even if this

Saucier, 533 U.S. at 201 (emphasis

IT IS THEREFORE ORDERED that Dr. Nangalama’s motion to

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dismiss, Dr. Duc’s motion to dismiss plaintiff’s equal protection

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claim against him, and Dr. Duc’s motion for summary judgment on

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plaintiff’s due process claim against him be, and the same hereby

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are, GRANTED;
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AND IT IS FURTHER ORDERED that Dr. Duc’s motion to

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dismiss for failure to exhaust administrative remedies and Dr.

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Duc’s motion for summary judgment on plaintiff’s Eighth Amendment

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claim against him be, and the same hereby are, DENIED.

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DATED:

February 6, 2012

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