Robison v. Hill et al

Filing 104

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/8/13 ORDERING that Plaintiffs August 30, 2012 motion for extension of time 81 is GRANTED; Plaintiffs December 5, 2012 opposition to defendants March 23, 2 012 motion for summary judgment is deemed timely filed; and it is RECOMMENDED that Plaintiffs May 3, 2012 motion for preliminary injunction 69 be denied; Plaintiffs May 4, 2012 motion for a court-ordered physical examination 70 be denied; P laintiffs October 29, 2012 motion for preliminary injunction 88 be denied; Plaintiffs February 6, 2013 and March 20, 2013 motions to enforce process 96 and 100 be denied; and Defendants March 23, 2012 motion for summary judgment 61 be granted. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

(PC) Robison v. Hill et al

Doc. 104

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

GLEN W. ROBISON,

11
12
13

Plaintiff,

No. 2:10-cv-2954 JAM JFM (PC)

vs.
PARAMVIR SAHOTA, et al.,

14

ORDER AND

Defendants.

15

FINDINGS & RECOMMENDATIONS
/

16

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

17

42 U.S.C. § 1983. Plaintiff claims that defendants have violated his rights under the Eighth

18

Amendment by deliberate indifference to his serious medical needs. This action is proceeding

19

against nine defendants named in plaintiff’s original complaint, signed and dated December 3,

20

2010 and entered on the docket in this action on December 7, 2010 (ECF No. 8). The matter is

21

before the court on defendants’ motion for summary judgment and plaintiff’s renewed motions

22

for preliminary injunction and for examination by an outside specialist.1

23
1

24
25
26

Defendants filed their motion for summary judgment on March 23, 2012. Plaintiff
sought and received several extensions of time. Pursuant to the court’s July 31, 2012 order,
plaintiff’s opposition was due on or before October 1, 2012. On August 30, 2012, plaintiff filed
a motion for a ninety day extension of time to file his opposition, which he filed on December 5,
2012. Good cause appearing, plaintiff’s August 30, 2012 motion for extension of time will be
granted and his opposition deemed timely filed.
1
Dockets.Justia.com

1
2

I. Plaintiff’s Motions for Preliminary Injunction and For Examination by Outside Specialist
In December 2010 and June 2011, plaintiff filed motions for preliminary

3

injunction seeking an order requiring defendants to provide him with a weight gain diet, physical

4

therapy, an appointment with an orthopedic specialist, an MRI, and thermal underwear, all to

5

treat left knee and pelvic/hip pain (ECF Nos. 10, 34). Those motions were denied by order filed

6

October 7, 2011 (ECF No. 50). On May 3, 2012, plaintiff renewed his motion for injunctive

7

relief (ECF No. 69). On May 4, 2012, plaintiff renewed his motion for examination by an

8

outside specialist (ECF No. 70). Plaintiff subsequently filed three motions styled as motions to

9

“enforce process” of the motion for preliminary injunction (ECF Nos. 88, 96, 100).

10

On June 3, 2013, plaintiff filed a notice of change of address (ECF No. 103)

11

which shows that plaintiff has been released from state prison. Plaintiff’s motions for

12

preliminary injunction and examination by an outside specialist are mooted by his release from

13

state prison. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (inmate’s claims for

14

injunctive relief mooted by release from prison where inmate “has demonstrated no reasonable

15

expectation of returning” to prison). They should therefore be denied.

16

II. Defendants’ Motion for Summary Judgment

17
18

A. Summary Judgment Standards Under Rule 56
Summary judgment is appropriate when the moving party “shows that there is no

19

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

20

Fed. R. Civ. P. 56(a).

21

Under summary judgment practice, the moving party “initially bears the burden of

22

proving the absence of a genuine issue of material fact.” In re Oracle Corp. Securities Litigation,

23

627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

24

The moving party may accomplish this by “citing to particular parts of materials in the record,

25

including depositions, documents, electronically store information, affidavits or declarations,

26

stipulations (including those made for purposes of the motion only), admission, interrogatory
2

1

answers, or other materials” or by showing that such materials “do not establish the absence or

2

presence of a genuine dispute, or that the adverse party cannot produce admissible evidence to

3

support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden

4

of proof at trial, “the moving party need only prove that there is an absence of evidence to

5

support the nonmoving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at

6

325.); see also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment should be entered, after

7

adequate time for discovery and upon motion, against a party who fails to make a showing

8

sufficient to establish the existence of an element essential to that party’s case, and on which that

9

party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure

10

of proof concerning an essential element of the nonmoving party’s case necessarily renders all

11

other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so

12

long as whatever is before the district court demonstrates that the standard for entry of summary

13

judgment, . . ., is satisfied.” Id. at 323.

14

If the moving party meets its initial responsibility, the burden then shifts to the

15

opposing party to establish that a genuine issue as to any material fact actually does exist. See

16

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to

17

establish the existence of this factual dispute, the opposing party may not rely upon the

18

allegations or denials of its pleadings but is required to tender evidence of specific facts in the

19

form of affidavits, and/or admissible discovery material, in support of its contention that the

20

dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing

21

party must demonstrate that the fact in contention is material, i.e., a fact that might affect the

22

outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

23

248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

24

1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

25

return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433,

26

1436 (9th Cir. 1987).
3

1

In the endeavor to establish the existence of a factual dispute, the opposing party

2

need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

3

claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

4

versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary

5

judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a

6

genuine need for trial.’” Matsushita, 475 U.S. at 587 (citations omitted).

7

“In evaluating the evidence to determine whether there is a genuine issue of fact,”

8

the court draws “all reasonable inferences supported by the evidence in favor of the non-moving

9

party.” Walls v. Central Costa County Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011). It is

10

the opposing party’s obligation to produce a factual predicate from which the inference may be

11

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

12

aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

13

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

14

facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the

15

nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation

16

omitted).

17

On January 21, 2011 and July 31, 2012, the court advised plaintiff of the

18

requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure.

19

See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012), Rand v. Rowland, 154 F.3d 952, 957 (9th

20

Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

21

A. Statute of Limitations

22

California law determines the applicable statute of limitations in this § 1983

23

action. See Wilson v. Garcia, 471 U.S. 261 (1985). Until December 31, 2002, the applicable

24

state limitations period was one year. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)

25

/////

26

/////
4

1

(citing Cal. Civ. Proc. Code § 340(3) (West Supp. 2002); see also Maldonado v. Harris, 370 F.3d

2

945, 954-55 (9th Cir. 2004).2 Effective January 1, 2003, the applicable California statute of

3

limitations was extended to two years. See Jones, 393 F.3d at 927 (citing Cal. Civ. Proc. Code §

4

335.1).3 California law also tolls for two years the limitations period for inmates “imprisoned on

5

a criminal charge, or in execution under the sentence of a criminal court for a term less than for

6

life.” Cal. Civ. Proc. Code § 352.1.4

7

The complaint in this action was signed and dated on December 3, 2010, which is

8

deemed the filing date for purposes of the statute of limitations. See Douglas v. Noelle, 567 F.3d

9

1103, 1107 (9th Cir. 2009) (applying mailbox rule of Houston v. Lack, 487 U.S. 266 (1988) to

10

prisoner § 1983 complaints). Plaintiff’s complaint contains a number of allegations against

11

defendants that run from January 2004 through February 2006. All of those claims are time-

12

barred and the court will recommend summary judgment for the defendants included in those

13

allegations as to the claims that arise from those allegations.

14

B. Deliberate Indifference to Serious Medical Needs

15

Plaintiff’s claims arise from alleged deliberate indifference to his need for

16

adequate medical care for knee and hip pain he suffered after he was shot just above the knee

17

during a robbery in 1981. Plaintiff alleges that he needed and was denied an orthopedic shoe, a

18
2

19
20
21
22
23
24
25
26

Federal law governs when plaintiff’s § 1983 claims accrued and when the limitations
period begins to run. Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th Cir. 1998).
Under federal law, “the claim generally accrues when the plaintiff ‘knows or has reason to know
of the injury which is the basis of the action.’” Id. (citations omitted).
3

Defendants suggest that the applicable limitations period for plaintiff’s medical claims
should be the period of limitations for a medical malpractice claim set forth in California Code of
Civil Procedure § 340.5, but they cite no authority for that proposition. In the absence of such
authority, the court will apply the two year period set forth in California Code of Civil Procedure
340.3.
4

“The California courts have read out of the statute the qualification that the period of
incarceration must be ‘for a term less than for life’ in order for a prisoner to qualify for tolling.”
Jones, at 927 n.5 (citations omitted). The limitation period is also tolled while an inmate is
exhausting administrative remedies as required by 42 U.S.C. § 1997e(a). See Brown v. Valoff,
422 F.3d 926, 943 (9th Cir. 2005).
5

1

double right knee brace, and thermal underwear, as well as appropriate pain medication, a “gain

2

weight” program, adequate physical therapy, and adequate diagnostic procedures. See

3

Complaint, filed December 7, 2010, at 5-9.

4

Plaintiff’s claims, which arise under the Eighth Amendment, have two elements:

5

proof that plaintiff had a “serious medical need” and that defendants acted with “deliberate

6

indifference” to that need. Estelle v. Gamble, 429 U.S. 97, 105 (1976). A medical need is

7

serious if “the failure to treat a prisoner’s condition could result in further significant injury or

8

the ‘unnecessary and wanton infliction of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th

9

Cir. 1992) (quoting Estelle, 429 U.S. at 104, 97 S. Ct. 285). Deliberate indifference is proved by

10

evidence that a prison official “knows of and disregards an excessive risk to inmate health or

11

safety; the official must both be aware of the facts from which the inference could be drawn that

12

a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v.

13

Brennan, 511 825, 837 (1994). “Prison officials are deliberately indifferent to a prisoner’s

14

serious medical needs when they deny, delay, or intentionally interfere with medical treatment.”

15

Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (internal citations and quotation marks

16

omitted).

17

Mere negligence is insufficient for Eighth Amendment liability. Frost v. Agnos,

18

152 F.3d 1124, 1128 (9th Cir. 1998). In addition, “[a] difference of opinion between a physician

19

and the prisoner – or between medical professionals – concerning what medical care is

20

appropriate does not amount to deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987

21

(9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)).

22

It is undisputed that plaintiff had a serious medical need at all times relevant to

23

this action. Defendants seek summary judgment on the ground that plaintiff’s claims are based

24

////

25

////

26

////
6

1

solely on a difference of opinion with the medical care he received.5 Each defendant against

2

whom plaintiff has raised a timely claim is addressed in turn.6

3

1. Defendant Sahota

4

Defendant Sahota’s only post-December 2006 involvement with plaintiff was his

5

role in responding to an inmate grievance filed by plaintiff on February 9, 2010. See Ex. I to

6

Plaintiff’s Motion for Preliminary Injunction, filed December 7, 2010 (ECF No. 10) at 88-89.

7

The grievance arose from a decision by defendant Jeu to limit plaintiff’s prescription for

8

morphine to nights only and to prescribe Salsalate 500 mg for pain relief during the day. Id.

9

Defendant Sahota reviewed and denied the appeal at the first level of review. Id. In his decision,

10

defendant Sahota found in relevant part:

11

M. Jeu, M.D., Physician and Surgeon, Folsom State Prison (FSP),
examined and interviewed you on March 2, 2010. At that time you
were provided with an opportunity to explain your appeal issue(s)
and to provide any additional information and/or documentation.
After extensive review of your Unit Health Record (UHR), Dr. Jeu
noted that you present with HCV infection, status post liver biopsy
(January 29, 2007), history of right trochanteric bursitis and history
of hyperthyroidism. Dr. Jeu noted that you have pain on your left
knee and left knee [sic] which are basically degenerative in nature,
and you indicated to him that you have more pain during the cold
winter months. Dr. Jeu prescribed Morphine Sulfate ER 15mg at
nighttime with the understanding that the prescription was for short
term treatment for the cold winter months during which your
arthritic pain may worsen. You are now requesting that not only
do you wish to continue the Morphine at night, but also want it in

12
13
14
15
16
17
18
19
5

20
21
22
23
24
25

Defendants also contend that each of them was involved in reviewing plaintiff’s
administrative grievances and that liability cannot be predicated on their involvement in the
resolution of those administrative appeals. As the court has previously explained in findings and
recommendations that were adopted in full by the district court, “[w]ith respect to this Eighth
Amendment claim, plaintiff seeks to impose liability on . . . defendants on the ground that their
responses to his administrative appeals contributed to the delays in getting necessary care and the
attendance pain and suffering he has experienced and continues to experience,” and that, if
proved, is a valid basis for imposition of Eighth Amendment liability. See Findings and
Recommendations filed June 6, 2011 (ECF No. 33) at 5 (and case cited therein); Order filed
August 12, 2011 (ECF No. 41). Plaintiff’s separate First and Fourteenth Amendment claims
predicated on the manner in which the grievances were processed has been dismissed. See id.
6

26

Plaintiff’s claims against defendants Peterson and Dunlap are based solely on events
that pre-dated December 2006.
7

1

the morning. Of note, your left hip pain was compatible with
trochanteric bursitis and you were given a steroid injection which
improved your symptoms. You do not want another injection
because it caused depigmentation of the overlying skin.

2
3

Your case was extensively discussed during the physician’s
Narcotic Pain Medication Committee (NCPM) meeting on
February 25, 2010, and the recommendation was to taper you off of
Morphine for there is no clear indication for narcotic pain
medication at this time for a chronic knee/hip pain which is
degenerative in nature.

4
5
6

Your request to have this matter be investigated is denied as there
is no issue that requires investigation. It is apparent that physicians
have examined you and provided health care in accordance with
their professional opinions.

7
8
9
10

ECF No. 10-1, at 88. Plaintiff has presented no evidence that defendant Sahota’s response to this

11

grievance was deliberately indifferent to his need for adequate pain medication. Plaintiff’s only

12

timely claim against defendant Sahota is based solely on a difference of opinion with his medical

13

providers, which is not a basis for Eighth Amendment liability. See Snow v. McDaniel, 681 F.3d

14

at 987 (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)) For these reasons, defendant

15

Sahota is entitled to summary judgment.

16

2. Defendant Jeu

17

Plaintiff’s claim against defendant Jeu is based on defendant Jeu’s alleged refusal

18

to order necessary medical tests, refusal to refer plaintiff to an outside specialist, failure to

19

provide adequate pain medication, and failure to adequately monitor the adequacy of physical

20

therapy provided to plaintiff. See Plaintiff’s Opposition to Defendants’ Motion for Summary

21

Judgment (ECF No. 89) at 11-14. In the motion for summary judgment, defendants have focused

22

on the alleged failure to prescribe Morphine both night and day, and the failure to refer plaintiff

23

to an orthopedic surgeon or to order an MRI. See Defendants’ Motion for Summary Judgment,

24

filed March 23, 2012 (ECF No. 61-1) at 12-13. Defendants contend there is no evidence that

25

defendant Jeu acted with deliberate indifference. Id. at 12.

26

/////
8

1

Plaintiff has not presented any evidence which suggests that the majority of his

2

allegations against defendant Jeu, even if proved, are based on more than a difference of opinion

3

with his medical provider. With respect to his allegations concerning the alleged failure to

4

adequately monitor the physical therapy provided to plaintiff, plaintiff has presented no evidence

5

that defendant Jeu had a duty to monitor the physical therapy. For these reasons, defendant Jeu is

6

entitled to summary judgment.

7

3. Defendant Cardeno

8

Plaintiff’s claim against defendant Cardeno is based on alleged failures to refer

9

plaintiff to an orthopedic specialist, to provide plaintiff with a “flat land environment,” a proper

10

nutritional program, a gain weight program, and adequate physical therapy, as well as an alleged

11

failure to monitor plaintiff’s response to a steroid injection to determine its efficacy. Plaintiff’s

12

Opposition (ECF No. 89) at 15. Defendant Cardeno seeks summary judgment on the ground that

13

there is no evidence that any of defendant Cardeno’s acts or omissions were the product of

14

deliberate indifference.

15

Defendant Cardeno’s involvement with the events at bar is based on his role as

16

second level reviewer of inmate grievances filed by plaintiff. Plaintiff has presented no evidence

17

that would support a finding that defendant Cardeno’s decisions were the product of deliberate

18

indifference or that his claim against defendant Cardeno is based on more than a difference of

19

opinion with his medical provider. See ECF No. 10-1 at 66-67; 76-77. Defendant Cardeno is

20

entitled to summary judgment.

21

4. Defendants Grannis, Johnson, Stocker and Kimura-Yip

22

Plaintiff’s claims against defendants Grannis, Johnson, Stocker and Kimura-Yip

23

are all predicated on their respective roles in resolving administrative appeals filed by plaintiff.

24

There is no evidence that any of these defendants acted with deliberate indifference to plaintiff’s

25

serious medical needs in processing plaintiff’s grievances. See ECF No. 10-1 at Exs. E-L. For

26

these reasons, these defendants are entitled to summary judgment.
9

1

In accordance with the above, IT IS HEREBY ORDERED that:

2

1. Plaintiff’s August 30, 2012 motion for extension of time (ECF No. 81) is

3

granted;

4
5

2. Plaintiff’s December 5, 2012 opposition to defendants’ March 23, 2012 motion
for summary judgment is deemed timely filed; and

6

IT IS HEREBY RECOMMENDED that:

7

1. Plaintiff’s May 3, 2012 motion for preliminary injunction (ECF No. 69) be

8

denied;

9
10

2. Plaintiff’s May 4, 2012 motion for a court-ordered physical examination (ECF
No. 70) be denied;

11
12

3. Plaintiff’s October 29, 2012 motion for preliminary injunction (ECF No. 88)
be denied;

13
14

4. Plaintiff’s February 6, 2013 and March 20, 2013 motions “to enforce process”
(ECF Nos. 96 and 100) be denied; and

15
16

5. Defendants’ March 23, 2012 motion for summary judgment (ECF No. 61) be
granted.

17

These findings and recommendations are submitted to the United States District

18

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

19

days after being served with these findings and recommendations, any party may file written

20

objections with the court and serve a copy on all parties. Such a document should be captioned

21

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

22

objections shall be filed and served within fourteen days after service of the objections. The

23

/////

24

/////

25

/////

26

/////
10

1

parties are advised that failure to file objections within the specified time may waive the right to

2

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3

Dated: August 8, 2013

4

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

5
6
7

12
robi2954.msj

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
11