Baker v. Perez et al

Filing 109

ORDER signed by Magistrate Judge Kendall J. Newman on 05/25/12 denying 106 Motion for leave to file a supplemental summary judgment motion. Defendants are granted 30 days to file objections to the 03/28/12 findings and recommendations. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL BAKER,

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Plaintiff,

Defendants.

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No. 2:09-cv-2757 MCE KJN P

ORDER

vs.
PEREZ, et al.,

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/

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Pending before the court is defendants’ April 18, 2012 motion for leave to file a

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supplemental summary judgment motion regarding plaintiff’s claims against defendants Miller

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and Medina. For the following reasons, this motion is denied.

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Defendants’ First Summary Judgment Motion

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On August 10, 2011, defendants filed a summary judgment motion purporting to

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address all of plaintiff’s claims. (Dkt. No. 71.) On March 28, 2012, the undersigned

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recommended that defendants’ motion be granted in part and denied in part.

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The grounds raised by defendants for summary judgment as to defendants Miller

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and Medina are summarized herein.

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Defendant Miller

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Regarding defendant Miller, defendants stated that plaintiff’s claims arose from a

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602 filed by plaintiff on January 6, 2008, complaining that he had not received his Gabapentin on

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January 1 and 6, 2008. (Dkt. No. 71-1 at 8.) Defendants stated that on February 26, 2008,

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defendant Miller interviewed plaintiff regarding the complaints in his 602. (Id.) Defendants

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stated that defendant Miller told plaintiff that she did not know who was not delivering his

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medications. (Id.) Defendants stated that defendant Miller told plaintiff that at the time of the

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interview, she supervised only Nurse Clark. (Id.) Defendants state that plaintiff told defendant

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Miller that he had no problems receiving his medications when Nurse Clark was on duty. (Id.)

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Defendant Miller also told plaintiff that Z unit staff had been properly instructed regarding

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medication distribution. (Id.)

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Defendants also stated that in August of 2008, defendant Miller took a leave of

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absence. (Id.) Defendants stated that when defendant Miller returned, she was no longer in

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charge of scheduling nurses to deliver medications. (Id.)

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Defendant Miller moved for summary judgment on grounds that plaintiff was

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basing her liability on the theory of respondeat superior and that plaintiff had failed to link her to

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the alleged deprivations. As to plaintiff’s claims regarding his failure to obtain his pain medicine

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in January 2008, defendants argued that defendant Miller was not responsible for delivering

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plaintiff his medications. (Id. at 14.) Defendants further argued that during defendant Miller’s

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interview with plaintiff in February 2008, plaintiff admitted that he had been receiving his

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medication. (Id.) Plaintiff also told defendant Miller that he had no problems receiving his

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medication when Nurse Clark was on duty. (Id.)

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Regarding plaintiff’s allegations of failure to obtain his medication in November

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2008, defendants argued that defendant Miller was not responsible for supervising any nursing

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staff at this time. (Id. at 15.)

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Defendant Medina

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Regarding defendant Medina, defendants stated that plaintiff alleged that on

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November 10, 2008, plaintiff was informed that defendant Medina stopped his Tramadol

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prescription. (Id. at 11.)

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Defendants moved for summary judgment as to defendant Medina on grounds that

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it was defendant Medina’s medical opinion that plaintiff did not require both Tramadol and

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Gabapentin. (Id.) Defendants argued that defendant Medina’s failure to provide plaintiff with

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Tramadol for only a few days did not constitute deliberate indifference. (Id. at 18.)

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State Law Claims
Defendants requested that the court exercise its discretion and dismiss plaintiff’s

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state law claims made against all defendants, assuming that they were granted summary

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judgment as to all of plaintiff’s constitutional law claims.

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March 28, 2012 Findings and Recommendations

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On March 28, 2012, the undersigned issued findings and recommendations
addressing defendants’ first summary judgment motion.

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Defendant Miller

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The undersigned found that plaintiff raised the following claims against defendant

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Miller: 1) failure to adequately train the nurses she supervised regarding medication policies and

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procedures; 2) failure to implement and enforce adequate medication distribution policies; and 3)

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understaffing the nurses in the Z unit.

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In the findings and recommendations, the undersigned addressed defendants’

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argument that plaintiff was basing the liability of defendant Miller on the theory of respondeat

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superior and that he had not linked her to his claims of failure to receive pain medication.

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Regarding the first period of time plaintiff was housed in the Z Unit in 2008, the undersigned

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observed that in her declaration, defendant Miller did not claim that her duties did not include

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training her subordinates regarding medication distribution policies. (Dkt. No. 102 at 13.)
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Instead, the undersigned found that defendants were arguing that plaintiff had not demonstrated

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that an employee supervised by defendant Miller failed to deliver his medication. (Id.)

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The undersigned found that defendant Miller had not made a sufficient showing

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that she was not responsible for training the nurses who allegedly failed to deliver plaintiff’s

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medication. (Id.) The undersigned noted that in her declaration, defendant Miller stated that at

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the time she interviewed plaintiff on February 26, 2008, she only supervised Nurse Clark. (Id.)

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However, in his appeal, plaintiff alleged that he did not receive his medications on January 1,

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2008, and January 6, 2008. (Id.) Therefore, it was not clear from defendant Miller’s declaration

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whether defendant Miller supervised any of the nurses who allegedly failed to bring his

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medication in January 2008. In addition, the undersigned observed that the record demonstrated

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that when defendant Miller interviewed plaintiff on February 26, 2008, plaintiff told defendant

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Miller that he had not received his medication on February 1-4, 2008. (Id., citing Dkt.

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No. 14 at 44 (exhibits attached to plaintiff’s amended complaint).) Defendant Miller’s

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declaration did not address whether she supervised the nurses who allegedly failed to provide

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plaintiff with medications in February 2008. (Id. at 13-14.)

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In the findings and recommendations, the undersigned also observed that the

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record contained conflicting information regarding whether plaintiff had problems with Nurse

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Clark delivering his medications. (Id. at 14, citing exhibits attached to plaintiff’s amended

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complaint.)

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Because of the disputed facts set forth above, the undersigned found that

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defendant Miller was not entitled to summary judgment on grounds that plaintiff failed to

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adequately link her to the alleged deprivations. The undersigned also noted that defendants’

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summary judgment motion failed to address plaintiff’s claim that defendant Miller did not

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schedule enough nurses to distribute medication. (Id. at 15.)

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The undersigned recommended that defendant Miller be granted summary
judgment as to plaintiff’s claim that he did not receive his medication during the second period of
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time he was housed at HDSP due to defendant Miller’s failure to schedule enough nurses. The

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undersigned made this recommendation based on defendant Miller’s statement in her declaration

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that during this time, she no longer scheduled the nurses to deliver the medication. Because

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defendant Miller’s declaration did not address plaintiff’s claim that he did not receive his

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medication during this time because she failed to adequately train the nurses she supervised, the

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undersigned recommended that defendants Miller be denied summary judgment as to this claim.

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Defendant Medina

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The undersigned recommended that defendant Medina’s motion for summary

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judgment be denied because in making his decision to deny plaintiff Tramadol, defendant

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Medina failed to consider orders from Dr. Wang that plaintiff receive this drug. (Id. at 19.) The

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undersigned also rejected defendant Medina’s argument that he did not act with deliberate

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indifference because plaintiff was deprived of Tramadol for “only” ten days. (Id.)

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In the findings and recommendations, the undersigned found that plaintiff’s

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amended complaint contained additional claims against defendant Medina that were not

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addressed in defendants’ summary judgment motion. In particular, plaintiff’s amended

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complaint alleged that defendant Medina violated his Eighth Amendment rights by lying about

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re-ordering his medications and by interfering with prescriptions by Dr. Nepomuceno. (Id. at 22,

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citing Dkt. No. 14 at 34-35, 21, 22-26.)

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State Law Claims

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Regarding the state law claims, the undersigned acknowledged that a district court

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may decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has

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original jurisdiction. (Id. at 29.) However, where a plaintiff brings a state law claim against one

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defendant and a federal claim against another, supplemental jurisdiction may be exercised over

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the state defendant so long as the state and federal claims arise from a common nucleus of fact.

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(Id.) The undersigned recommended that plaintiff’s state law claims not be dismissed because

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neither party had addressed whether the remaining federal claims arose from a common nucleus
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of fact as the state law claims. (Id. at 30.)

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Pending Motion for Leave to File Supplemental Summary Judgment Motion

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In the pending motion, defendants seek leave to file a supplemental summary
judgment addressing the following claims:

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1. Whether defendant Miller failed to train nurses under her
supervision regarding medication delivery during plaintiff’s second
period at Z unit or if there were other reasons for plaintiff’s failure
to receive his medications.

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2. Whether defendant Miller was responsible for training nurses
on January 1 and 6, 2008 and from February 1-4, periods when
plaintiff failed to receive his medications.

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3. Whether defendant Miller failed to schedule nurses during the
first period of time that plaintiff was housed at the Z Unit at HDSP,
resulting in plaintiff’s failure to consistently receive pain
medications, or what the reasons for the nurses’ alleged failure to
conduct rounds were.

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4. Whether defendant Medina’s decision to discontinue Tramadol
upon plaintiff’s return to HDSP in November 2008 was deliberate
indifference.

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5. Whether defendant Medina lied about reordering plaintiff’s
prescriptions or interfered with prescriptions written by Dr.
Nepomuceno.

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6. Whether plaintiff’s state law claims arise from a common
nucleus of fact with the federal claims, or if there are other
defenses that can be asserted to the state law claims.

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Defendants request leave to file a supplemental summary judgment motion on

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grounds that the findings and recommendations narrowed and clarified the issues in the amended

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complaint beyond the discussion in the screening order.

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Defendants’ first summary judgment motion addressed the merits of plaintiff’s

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claim against defendant Medina regarding his decision to discontinue Tramadol. The findings

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and recommendations did not clarify this issue. For this reason, the request to file a

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supplemental summary judgment motion regarding this issue is denied.

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Plaintiff’s amended complaint contains several pages of allegations regarding

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defendant Medina’s alleged interference with his receipt of prescriptions, including Ensure.

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(Dkt. 15 at 21-28, 34-35.) The undersigned acknowledges that pro se complaints can be difficult

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to decipher. However, the lengthy allegations in plaintiff’s amended complaint regarding

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defendant Medina’s alleged interference with his prescriptions are not so cryptic, unintelligible or

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otherwise buried in the complaint, that defendants’ failure to address them in the original

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summary judgment motion excuses their failure to address these allegations in the summary

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judgment motion.

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Plaintiff’s amended complaint stated a claim against defendant Miller based on

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her alleged failure to train the nurses she supervised. (Dkt. 14 at 10, 31.) The undersigned does

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not find plaintiff’s failure to train claim against defendant Miller to be so buried in the amended

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complaint that defendants’ failure to address it in the first summary judgment motion is

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excusable. The undersigned also notes defendant Miller’s declaration submitted in support of the

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first summary judgment did not adequately address plaintiff’s claims. As discussed above,

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statements in defendant Miller’s declaration, such as what plaintiff told her during the interview

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regarding Nurse Clark and the dates on which he allegedly did not receive his medications, were

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contradicted by other evidence in the record. The undersigned is reluctant to allow defendants to

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file a supplemental summary judgment motion in order to address these inconsistencies brought

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to their attention by the court.

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Plaintiff’s understaffing claim against defendant Miller is less apparent.

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However, because the undersigned denies defendants’ request to file a supplemental summary

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judgment motion regarding the other claims discussed above, allowing defendants to file a

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supplemental summary judgment motion regarding this one claim is not an efficient use of court

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resources.

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Because defendants’ request to file a supplemental summary judgment motion

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regarding plaintiff’s constitutional claims is denied, the motion to file a supplemental summary

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judgment motion regarding the state law claims is denied as well. Significant court resources

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were spent in evaluating defendants’ first summary judgment motion. Further expenditure of

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court resources to evaluate the remaining state claims is not warranted.

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The undersigned has carefully considered defendants’ request for leave to file a

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supplemental summary judgment motion. As to some claims, the request is a close call.

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However, after reviewing the record, the undersigned has determined that defendants’ motion

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should be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion for leave to file a supplemental summary judgment motion

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(Dkt. No. 106) is denied;

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2. Defendants are granted thirty days to file objections to the March 28, 2012

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findings and recommendations.

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DATED: May 25 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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