Calloway v. Veal, et al
Filing
57
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/03/12 recommending that defendants' 04/16/12 motion for summary judgment 45 be granted. Motion for Summary Judgment 45 referred to Judge Garland E. Burrell. Objections due within 14 days. (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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JAMISI JERMAINE CALLOWAY,
Plaintiff,
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vs.
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No. 2:09-cv-2907 GEB EFB P
M. VEAL, et al.,
Defendants.
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FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
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U.S.C. § 1983. The remaining defendants in this action, Veal and Andreasen, have filed a
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motion for summary judgment. Dckt. No. 45. For the reasons that follow, it is recommended
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that the motion be granted.
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I.
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Background
This action proceeds on the amended complaint filed December 14, 2011. Dckt. No. 16.
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Plaintiff claims that defendants Andreasen and Veal were deliberately indifferent to his serious
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medical needs while he was in administrative segregation under “contraband surveillance watch”
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from July 30, 2006 to August 7, 2006. Dckt No. 16 at 5-6. Specifically, plaintiff alleges that he
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“was placed in leg restraints and leg irons” in a locked cell without a working toilet, “left in full
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restraints and denied all medical attention for six days,” even after his hemodialysis access
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became clotted. Id. at 5. Plaintiff alleges that he was forced to remain in chains and under a
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bright beam light, 24 hours a day. Id. at 5-6. Plaintiff alleges that it was defendant Veal’s
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“action” to leave him shackled in the cell without medical treatment. Id. at 6.
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Plaintiff alleges that defendant Andreasen ignored his serious medical needs during this
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period when he “knowingly kept me in restraints and shakles [sic] for” six days without medical
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treatment. Id. Further, plaintiff alleges that defendant Andreasen delayed the necessary
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declotting treatment after his access became clotted on August 1, 2006 until August 7, 2006. Id.
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II.
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Summary Judgment Standards
Summary judgment is appropriate when there is “no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary
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judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant
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to the determination of the issues in the case, or in which there is insufficient evidence for a jury
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to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600
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(1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass’n v.
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U.S. Dep’t of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment
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motion asks whether the evidence presents a sufficient disagreement to require submission to a
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jury.
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The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims
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or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to
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“‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for
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trial.’” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
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(quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally,
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under summary judgment practice, the moving party bears the initial responsibility of presenting
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the basis for its motion and identifying those portions of the record, together with affidavits, if
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any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477
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U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving
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party meets its burden with a properly supported motion, the burden then shifts to the opposing
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party to present specific facts that show there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
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Anderson., 477 U.S. at 248; Auvil v. CBS "60 Minutes", 67 F.3d 816, 819 (9th Cir. 1995).
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A clear focus on where the burden of proof lies as to the factual issue in question is
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crucial to summary judgment procedures. Depending on which party bears that burden, the party
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seeking summary judgment does not necessarily need to submit any evidence of its own. When
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the opposing party would have the burden of proof on a dispositive issue at trial, the moving
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party need not produce evidence which negates the opponent’s claim. See e.g., Lujan v. National
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Wildlife Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters
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which demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 323-
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24 (1986). (“[W]here the nonmoving party will bear the burden of proof at trial on a dispositive
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issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings,
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depositions, answers to interrogatories, and admissions on file.’”). Indeed, summary judgment
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should be entered, after adequate time for discovery and upon motion, against a party who fails
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to make a showing sufficient to establish the existence of an element essential to that party’s
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case, and on which that party will bear the burden of proof at trial. See id. at 322. In such a
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circumstance, summary judgment must be granted, “so long as whatever is before the district
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court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is
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satisfied.” Id. at 323.
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To defeat summary judgment the opposing party must establish a genuine dispute as to a
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material issue of fact. This entails two requirements. First, the dispute must be over a fact(s)
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that is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S.
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at 248 (“Only disputes over facts that might affect the outcome of the suit under the governing
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law will properly preclude the entry of summary judgment.”). Whether a factual dispute is
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material is determined by the substantive law applicable for the claim in question. Id. If the
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opposing party is unable to produce evidence sufficient to establish a required element of its
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claim that party fails in opposing summary judgment. “[A] complete failure of proof concerning
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an essential element of the nonmoving party’s case necessarily renders all other facts
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immaterial.” Celotex, 477 U.S. at 322.
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Second, the dispute must be genuine. In determining whether a factual dispute is genuine
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the court must again focus on which party bears the burden of proof on the factual issue in
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question. Where the party opposing summary judgment would bear the burden of proof at trial
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on the factual issue in dispute, that party must produce evidence sufficient to support its factual
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claim. Conclusory allegations, unsupported by evidence are insufficient to defeat the motion.
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Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Rather, the opposing party must, by affidavit
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or as otherwise provided by Rule 56, designate specific facts that show there is a genuine issue
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for trial. Anderson, 477 U.S. at 249; Devereaux, 263 F.3d at 1076. More significantly, to
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demonstrate a genuine factual dispute the evidence relied on by the opposing party must be such
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that a fair-minded jury “could return a verdict for [him] on the evidence presented.” Anderson,
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477 U.S. at 248, 252. Absent any such evidence there simply is no reason for trial.
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The court does not determine witness credibility. It believes the opposing party’s
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evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255;
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Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the
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proponent must adduce evidence of a factual predicate from which to draw inferences. American
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Int’l Group, Inc. v. American Int’l Bank, 926 F.2d 829, 836 (9th Cir.1991) (Kozinski, J.,
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dissenting) (citing Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts
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at issue, summary judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441
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(9th Cir. 1995). On the other hand,“[w]here the record taken as a whole could not lead a rational
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trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
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475 U.S. at 587 (citation omitted). In that case, the court must grant summary judgment.
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Finally, to demonstrate a genuine issue, the opposing party “must do more than simply
show that there is some metaphysical doubt as to the material facts . . . . Where the record taken
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as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
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‘genuine issue for trial.’” Id. If the evidence presented and any reasonable inferences that might
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be drawn from it could not support a judgment in favor of the opposing party, there is no genuine
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issue. Celotex., 477 U.S. at 323. Thus, Rule 56 serves to screen cases lacking any genuine
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dispute over an issue that is determinative of the outcome of the case.
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Concurrent with the instant motion, defendants advised plaintiff of the requirements for
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opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dckt. No. 45;
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see Woods v. Carey, ___ F.3d ___, Nos. 09-15548, 09-16113, 2012 U.S. App. LEXIS 13779 (9th
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Cir. July 6, 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied,
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527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).
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III.
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Analysis
The Eighth Amendment of the U.S. Constitution protects prisoners from inhumane
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methods of punishment and from inhumane conditions of confinement. Morgan v. Morgensen,
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465 F.3d 1041, 1045 (9th Cir. 2006). Extreme deprivations are required to make out a
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conditions of confinement claim, and only those deprivations denying the minimal civilized
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measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
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violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Prison officials “must provide humane
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conditions of confinement,” including “adequate food, clothing, shelter, and medical care.”
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Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). To succeed on an Eighth Amendment
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conditions-of-confinement claim, a prisoner must show that (1) the defendant prison official’s
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conduct deprived him or her of the minimal civilized measure of life’s necessities (the objective
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component) and (2) that the defendant acted with deliberate indifference to the prisoner’s health
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or safety (the subjective component). Id. at 834. To show deliberate indifference, the prisoner
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must establish that the defendant knew of and disregarded an excessive risk to inmate health or
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safety; “the official must both be aware of facts from which the inference could be drawn that a
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substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
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To prevail on an Eighth Amendment claim predicated on the denial of medical care, a
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plaintiff must establish that he had a serious medical need and that the defendant’s response to
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that need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see
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also Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need exists if the failure to
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treat plaintiff’s condition could result in further significant injury or the unnecessary and wanton
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infliction of pain. Jett, 439 F.3d at 1096. An officer has been deliberately indifferent if he was
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(a) subjectively aware of the serious medical need and (b) failed to adequately respond. Farmer
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v. Brennan, 511 U.S. 825, 828 (1994).
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Neither a defendant’s negligence nor a plaintiff’s general disagreement with the
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treatment he received suffices to establish deliberate indifference. Estelle, 429 U.S. at 106;
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Jackson v. McIntosh, 90 F.3d 330, 331 (9th Cir. 1996); Hutchinson v. United States, 838 F.2d
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390, 394 (9th Cir. 1988). Evidence that medical caregivers disagreed as to the need to pursue
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one course of treatment over another is also insufficient, by itself, to establish deliberate
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indifference. Jackson, 90 F.3d at 332. Rather, the plaintiff must show that the course chosen by
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the defendants was medically unacceptable under the circumstances. Jackson, 90 F.3d at 332.
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When a prisoner alleges a delay in medical treatment, he must show the delay caused an injury.
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See McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds, WMX
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Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc); see also Wood v.
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Housewright, 900 F.2d 1332, 1334-35 (9th Cir. 1990) (several day delay in treatment did not
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violate Eighth Amendment where there was no emergency and given plaintiff’s condition, i.e., a
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severe shoulder injury, the only remedy immediately available was painkillers).
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Finally, “a prison official can violate a prisoner’s Eighth Amendment rights by failing to
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intervene” to prevent a violation imposed by someone else. Robins v. Meecham, 60 F.3d 1436,
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1442 (9th Cir. 1995). A defendant-officer may be held liable for failing to intervene when he
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had enough time to observe what was happening and to intervene and prevent or curtail the
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violation, but failed to do so. See Lanier v. City of Fresno, 2010 U.S. Dist. LEXIS 130459, 2010
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WL 5113799, at *6 (E.D. Cal. Dec. 8, 2010) (citations omitted).
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For the reasons that follow, the undersigned concludes that plaintiff has failed to
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demonstrate a genuine dispute of material fact, and summary judgment is therefore appropriate.
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Defendants argue that the undisputed facts show that they did not violate plaintiff’s Eighth
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Amendment rights. As to defendant Veal, plaintiff has produced no evidence that defendant
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Veal was responsible for plaintiff’s alleged harm. Liability under § 1983 may be imposed on a
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supervisor like defendant Veal if: (1) the supervisor personally participated in the deprivation of
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constitutional rights, or (2) the supervisor knew of the violations and failed to act to prevent
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them, or (3) the supervisor implemented a policy “so deficient that the policy itself ‘is a
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repudiation of constitutional rights’ and is ‘the moving force of the constitutional violation.’”
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Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991).
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First, plaintiff has not produced any evidence that defendant Veal personally participated
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in his placement on contraband surveillance watch. There is no evidence in the record that
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plaintiff was placed on contraband surveillance watch because defendant Veal ordered it;
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instead, the evidence shows that plaintiff was segregated because a correctional officer alleged
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that plaintiff had hidden contraband in his rectum. The lock-up order, filed earlier in this action
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by plaintiff, nowhere bears defendant Veal’s name or signature. Dckt. No. 37 at 4. Second,
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plaintiff has not produced any evidence that defendant Veal knew that his placement on
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contraband surveillance watch would cause plaintiff harm but failed to act to prevent that harm.
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Third, plaintiff has not produced a policy authored or enforced by defendant Veal requiring that
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an inmate be shackled and placed in administrative segregation for suspicion of contraband
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regardless of the his medical condition. Plaintiff has simply produced an unidentified document
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containing a section entitled “52050.11.3 Restraint Gear Use.” Dckt. No. 55-3 at 11. Nothing in
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the document indicates that it was authored or enforced by defendant Veal. Further, the section
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referenced by plaintiff states, “[N]o restraint equipment shall be . . . applied in any way as to
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inflict physical pain, undue physical discomfort, restriction of blood circulation or breathing.”
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Id. Plaintiff has additionally offered the Contraband Surveillance Watch Procedure for Kern
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Valley State Prison, signed by Warden M.D. Biter. Dckt. No. 55-4 at 23-27. That document is
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not material to the instant dispute, which concerns events at CMF, not Kern Valley State Prison.
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Moreover, plaintiff has produced no evidence, other than his own self-serving statements,
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that his placement in restraints while on contraband surveillance watch, rather than some other
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factor, caused his AV graft to become clogged or that the restraints otherwise caused him serious
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harm. See FTC v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010) (stating that, while
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“[s]pecific testimony by a single declarant can create a triable issue of fact, . . . the district court
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. . . need not find a genuine issue of fact if, in its determination, the particular declaration was
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uncorroborated and self-serving.”) There is no medical evidence in the record to support this
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contention.
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In sum, plaintiff has not produced evidence upon which a reasonable jury could conclude
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that defendant Veal was responsible for placing plaintiff in conditions that posed a serious risk of
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harm either directly or through a policy he implemented.
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As to defendant Andreasen, plaintiff has not produced evidence that Andreasen refused
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or failed to respond reasonably to plaintiff’s medical needs. Plaintiff contends that Dr. “Al-
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Banner” ordered on August 3, 2006 that plaintiff be sent immediately to an outside hospital for
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declotting but that defendant Andreasen instead sent him back to administrative segregation.
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Plaintiff’s evidence shows that a Dr. Al-Bander noted on August 3, 2006 that plaintiff should be
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sent to QVMC for declotting (Dckt. No. 55-3 at 36) and to the prison clinic for evaluation of his
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complaints of severe abdominal pain (id. at 37), but Dr. Al-Bander did not indicate that plaintiff
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must be sent immediately to QVMC for the declotting. Another note in plaintiff’s medical file
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states, “Dr. Dhillon talked to Dr. Andreasen about pt.’s graft that is clotted[.] Per Dr. Andreasen
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pt.’s problem will be taken care of in AM. Pt. released to custody and back to house. Pt. not in
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any distress.” Id. at 41. Rather than demonstrating defendant Andreasen’s deliberate
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indifference, plaintiff’s medical records indicate that defendant Andreasen submitted an “urgent”
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(but not “emergent”) request that same day (August 3, 2006) that plaintiff be taken to QVMC for
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declotting. Id. at 42. The request was approved on August 4, 2006 (a Friday) and an
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appointment was scheduled for August 7, 2006 (a Monday). Id. at 43, 46. Plaintiff refused to go
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to QVMC for the declotting on August 7th, however. Dckt. No. 55-3 at 43, 50. A chart note
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explains that plaintiff was “very angry and loudly state[d] that he won’t go to Queen of the
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Valley for any F/U of his shunt. MD explained to patient the risk of not declotting his shunt. Pt.
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still very solid he refuses to go to Queen of the Valley.” Id. at 50. Plaintiff testified at his
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deposition that he did not want to return to QVMC because they had placed the AV graft in his
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arm without his consent in late July. Pl.’s Dep. 40:6-11. Plaintiff was taken to QVMC for the
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declotting on August 15, 2006 after the appointment was rescheduled. Dckt. No. 55-3 at 54.
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Simply put, plaintiff has produced no evidence supporting his general assertion that
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defendant Andreasen denied him all medical care while he was on contraband surveillance watch
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or, more specifically, that the declotting procedure needed to be performed immediately on
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August 3rd and that it was not medically reasonable for the procedure to be scheduled four days
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later. Indeed, the evidence shows that the graft was successfully declotted 12 days later, after
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plaintiff consented to be treated at QVMC. Dckt. No. 55-3 at 54-60.
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Nor has plaintiff raised a triable issue that defendant Andreasen’s decision to release him
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back to segregation was deliberately indifferent. While plaintiff alleges that his dressings were
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not changed during the time that he was segregated, plaintiff’s medical records indicate that one
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or more dressings were changed at each dialysis appointment on August 1st, 3rd, and 5th. Dckt.
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No. 47-1 at 14 (August 1, 2006 “Drsg Δ’d”), 18 (August 3, 2006 “Drsg Δ to 2 cath done per
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protocol”), 27 (August 5, 2006 “routine cath care rendered”). Plaintiff has presented no
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evidence beyond his own self-serving statements that he needed dressing changes that were not
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performed or that defendant Andreasen was responsible for those dressing changes. In addition,
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as discussed above, plaintiff has not presented evidence upon which a reasonable jury could
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conclude that his placement in restraints presented a risk of harm. Accordingly, plaintiff has
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failed to show that defendant Andreasen exposed plaintiff to a serious risk of harm by releasing
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him to return to administrative segregation.
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Because plaintiff has failed to present evidence upon which a reasonable jury could
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conclude that defendants Veal and Andreasen violated his Eighth Amendment rights during the
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time he was placed on contraband surveillance watch between July 30, 2006 and August 7, 2006,
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the undersigned recommends that the motion for summary judgment be granted.
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IV.
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Recommendation
Accordingly, it hereby RECOMMENDED that defendants’ April 16, 2012 motion for
summary judgment (Docket No. 45) be granted.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 3, 2012.
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