Moore v. Price

Filing 55

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 6/12/2017 RECOMMENDING defendants' 44 motion for summary judgment be denied; plaintiff's 45 motion for reconsideration be denied; and plaintiff's 46 motion for subpoenas be denied without prejudice. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 No. 2:14-cv-01232 TLN DB KEVIN MOORE, v. FINDINGS AND RECOMMENDATIONS PRICE, et al., 15 Defendants. 16 Plaintiff, Kevin Moore, is a state prisoner proceeding pro se and in forma pauperis in an 17 18 action brought under 42 U.S.C. § 1983. Plaintiff asserts a claim under the Eighth Amendment for 19 deliberate indifference to medical needs. Plaintiff, a diabetic, alleges that defendants failed to 20 give him lunch while transporting him to an offsite medical appointment, which caused him to 21 suffer hypoglycemia. Before the court are (1) defendants’ motion for summary judgment; (2) plaintiff’s motion 22 23 for reconsideration; and (3) plaintiff’s motion for subpoenas. As discussed below, the 24 undersigned recommends that each of these motions e denied. 25 //// 26 //// 27 //// 28 //// 1 1 I. 2 BACKGROUND A. 3 Factual Background 1. Undisputed Facts Plaintiff is an inmate at Deuel Vocational Institution (“DVI”). (ECF No. 44-1 at 4; ECF 4 5 No. 47 at 5.) Plaintiff is diabetic. (ECF No. 44-1 at 4; ECF No. 47 at 5.) Defendants Parsons, 6 Walls, and Bell are employees of the California Department of Corrections (“CDCR”). (ECF No. 7 44-1 at 4; ECF No. 47 at 5.) Bell and Walls are correctional officers. (ECF No. 44-4 ¶ 1; ECF 8 No. 44-6 ¶ 1.) Parsons is a correctional lieutenant. (ECF No. 44-7 ¶ 1.) On July 23, 2013, 9 defendants were assigned to transport plaintiff and other inmates to offsite medical appointments. 10 (ECF No. 44-1 at 4; ECF No. 47 at 5.) Defendants left DVI around 1:00 p.m. for appointments 11 scheduled between 1:45 and 2:00 p.m. (ECF No. 44-1 at 4; ECF No. 47 at 5.) 12 2. 13 Plaintiff’s Version of the Facts On said date, plaintiff had a follow-up appointment with an eye doctor regarding recent 14 laser surgery to relieve eye pressure. (ECF No. 47 at 2.) Before leaving, plaintiff informed 15 defendants that he had recently received his noon insulin shot and had not eaten lunch. (Id.) 16 Plaintiff got sick while waiting at the doctor’s office. (Id.) He informed Parsons that: (1) he was 17 feeling shaky, nervous, confused, light-headed, and nauseated; (2) his heart was pounding; and 18 (3) he had blurred vision. (Id.) Plaintiff asked Parsons to inform the doctor that he was 19 experiencing hypoglycemia. (Id.) But he did not see defendants inform the doctor or any 20 medical staff about the problem. (Id.) Nor did defendants tell him that they had done so. (Id.) Parsons told plaintiff that he “was not going to die and would feel better one [he] got [his] 21 22 ass [back] in the van.” (Id.) On the way back to DVI, plaintiff told defendants that he was in 23 “emergency need of medical care.” (Id.) Defendants ignored him. (Id. at 3.) It is undisputed 24 that defendants stopped at a hamburger restaurant to get themselves food and/or drinks. (Id. at 3, 25 39–41.) Plaintiff sat in the van while they were inside. (Id. at 3.) He was trembling, sweating, 26 and going in and out of consciousness. (Id.) 27 //// 28 //// 2 1 The parties agree that they returned to DVI around 5:00 p.m. (ECF No. 44-1 at 5; ECF 2 No. 47 at 5.) Defendants ordered plaintiff out of the van. (ECF No. 47 at 3.) He tried to stand 3 but collapsed. (Id.) His feet and ankles were swollen. (Id.) 4 Plaintiff was transported to the infirmary by wheelchair. (Id.) It is undisputed that his 5 blood sugar was 65, which is low. (Id.; ECF No. 44-5 ¶ 4.) Plaintiff was immediately treated 6 with glucose. (ECF No. 47 at 3.) Plaintiff had several follow-up visits with “DVI physician H. Win.” (Id.) During these 7 8 visits, plaintiff complained about swollen ankles and feet and pain in his back, legs, and scrotum. 9 (Id.) Plaintiff also requested eye drops to treat his increased eye pressure, which had stabilized 10 before the incident. (Id.) 11 12 Dr. Win told plaintiff that his pain was due to nerve damage. (Id.) On November 12, 2013, plaintiff was given “special shoes for [his] swollen ankles and feet.” (Id.) On November 19, 2013, plaintiff underwent “trabeculotomy with implantation of an 13 14 aqueous shunt and scleral grafting” on his left eye. (Id. at 4, 37.) Gregory C. Telsluk, M.D., 15 performed the surgery. (Id.) Dr. Telsluk, Dr. Win, and “DVI physician P. [Nguyen]” told 16 plaintiff that the surgery was due in part to his increased eye pressure. (Id. at 4.) Nearly a month 17 later, Dr. Telsluk performed the same surgery on plaintiff. (Id. at 4, 38.) The same three doctors 18 again told plaintiff that the surgery was due in part to his increased eye pressure. (Id.) 19 3. 20 Defendants’ Version of the Facts Lunches are sometimes provided during transports to medical appointments if they 21 interfere with regularly scheduled meals. (ECF No. 44-1 at 4.) But lunch was not provided 22 during the transport in question because it was expected to be short and not to interfere with 23 regular meal service. (Id.) At the doctor’s office, plaintiff asked if lunch had been brought. (Id. 24 at 5.) Walls said no because the transport was short. (Id.) Plaintiff then started to complain 25 “about his diabetes and lunch.” (Id.) Defendants told plaintiff that they would ensure that he 26 received a meal if they returned to DVI after regular dinner service. (Id.) Plaintiff did not exhibit 27 symptoms of hypoglycemia at the doctor’s office or during the return trip to DVI. (See id.) 28 //// 3 1 Walls “personally escorted” plaintiff to the medical clinic when they returned to DVI. (Id. 2 at 5.) The parties agree that, per policy, all inmates who are transported offsite must have a 3 medical examination upon returning to DVI. (Id.; ECF No. 47 at 5.) 4 5 6 At the medical clinic, plaintiff did not report any “symptoms or concerns” about this low blood sugar. (ECF No. 44-1 at 5.) “He was evaluated, treated, and released.” (Id.) All diabetics have hypoglycemic episodes. (Id. at 6.) Plaintiff’s diabetes is well- 7 controlled. (Id.) He did not suffer “inadequately controlled glaucoma, increased blood vessel 8 damage, increased eye pressure, pre-mature surgery, [or] increased heart strain” due to the 9 incident in question. (Id.) 10 B. Procedural Background 11 Plaintiff filed a complaint on May 20, 2014, (ECF No. 1), which he amended on March 12 24, 2016, (ECF No. 30). He asserts an Eighth Amendment claim for deliberate indifference to 13 serious medical needs. (Id. at 10.) The crux of the amended complaint is that defendants were 14 deliberately indifferent to the hypoglycemic episode described above. He alleges that their 15 deliberate indifference caused him to suffer “further heart strain, kidney damage, eye damage, 16 blood vessel damage[,] and nerve damage.” (Id. at 8–9.) 17 Defendants answered and the case went into discovery. Plaintiff filed a motion to compel, 18 (ECF No. 36), which the court denied, (ECF No. 43). The court noted that plaintiff had requested 19 “additional information” from defendants. (Id. at 4.) This information included “any and all 20 documents that may give instructions to officers as to their duties in the event an inmate falls ill 21 during transport.” (Id.) Apparently, defendants’ counsel objected to this request on the ground 22 that it was untimely. (See ECF No. 40-1 ¶ 8.) Yet she indicated that she was willing to look for 23 this information, stating that she contacted the litigation coordinator at DVI at least twice about it. 24 (See id. ¶ 12.) All the same, the court held that these additional requests were “untimely.” (ECF 25 No. 43 at 7.) 26 On October 20, 2016, defendants moved for summary judgment. (ECF No. 44.) 27 Defendants argue that plaintiff’s claim for deliberate indifference fails because he did not: (1) 28 exhibit symptoms of medical distress; (2) miss any meals; or (3) suffer any serious harm. (ECF 4 1 No. 44-1 at 1.) Regarding reason (3), defendants argue that plaintiff has no evidence that the 2 hypoglycemic episode harmed him other than “conclusory statements.” (Id.) They further argue 3 that the evidence of his own physician, Dr. Win, shows that his “diabetes is well-controlled and 4 that the . . . incident . . . did not result in . . . permanent harm.” (Id.) Additionally, defendants 5 argue that plaintiff’s “opinions and allegations” that he suffered harm are inadmissible because he 6 is not an “expert witness.” (Id. (citations omitted).) Defendants also asserted qualified immunity. 7 (Id. at 10.) Plaintiff has opposed defendants’ motion for summary judgment. (ECF No. 47.) He 8 9 argues that the following factual allegations show that defendants were deliberately indifferent to 10 his hypoglycemia: (1) they failed to summon help at the doctor’s office; (2) they got food and/or 11 drink while he was “shackled in the van trembling”; and (3) they failed to summon help when he 12 returned to DVI, ordering him out of the van instead. (Id. at 10–12.) Furthermore, he insists that 13 the hypoglycemic episode harmed him, resulting in “swollen ankles and feet, increased eye 14 pressure, back, leg, [and] scrotum pain.” (Id. at 12.) 15 Plaintiff disputes defendants are entitled to qualified immunity. (Id. at 16.) He contends 16 that their actions were clearly unlawful because it was “obvious” that he needed medical 17 assistance and “any reasonable person exercising common sense” would have sought it. (See id. 18 at 15–16.) Further, he argues that defendants’ failure to seek medical assistance violated CDCR 19 regulations. (Id. at 15 (citing Cal. Code Regs. tit. 15, § 3354(d)).) This regulation provides: 20 If an inmate is away from a facility for authorized reasons . . . [and] 21 becomes seriously ill or injured, emergency health care attention by 22 available resources shall be obtained by the official in charge. 23 Community physicians and hospitals shall be used if the inmate’s 24 condition does not permit prompt return to a department medical 25 facility. 26 //// 27 //// 28 //// 5 On November 21, 2016, defendants replied. (ECF No. 48.) They assert that Dr. Win’s 1 2 affidavit shows that plaintiff’s hypoglycemic episode did not harm him. (Id. at 1.) Further, they 3 argue that he failed to submit evidence that the episode harmed him. (Id. at 2.) In their 4 estimation, his own opinion that the episode harmed him is inadmissible because he is not a 5 medical expert. (Id. (citation omitted).) 6 Plaintiff has moved for reconsideration, (ECF No. 45), of an order issued on October 4, 7 2016, (ECF No. 43). In the order, the court denied his motion to compel. (Id. at 5–6.) Plaintiff 8 asserts that he requested documents that instruct officers about their duties when an inmate falls 9 ill during transport. (ECF No. 45 at 2.) He also asserts that the court found this request untimely. 10 (Cf. id.) But he contends that he made this request “prior to July 15, 2016,” which he believes 11 shows that it was timely. (See id.) Thus, he concludes that the court erred in finding otherwise. 12 (See id.) 13 Plaintiff also has filed a motion for subpoenas. (ECF No. 46.) Therein, he seeks to 14 subpoena Dr. Win, Dr. Tesluk, and Sally Legaspi, the nurse who treated him with glucose for his 15 low blood sugar. (Id.) Plaintiff states that, “if called,” these potential witnesses will testify about 16 the information contained in certain medical records. (Id. at 2.) Defendants did not respond to 17 plaintiff’s motion for reconsideration and motion for subpoenas. 18 II. STANDARD OF REVIEW Summary judgment is appropriate when there is “no genuine dispute as to any material 19 20 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary 21 judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant 22 to the determination of the issues in the case, or in which there is insufficient evidence for a jury 23 to determine those facts in favor of the nonmovant. Crawford-El v. Britton, 523 U.S. 574, 600 24 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50 (1986); Nw. Motorcycle Ass’n v. 25 U.S. Dep’t of Agric., 18 F.3d 1468, 1471–72 (9th Cir. 1994). In essence, a summary judgment 26 motion asks whether the evidence presents a sufficient disagreement to require submission to a 27 jury. 28 //// 6 1 The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims 2 or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). Thus, the rule functions to 3 “‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for 4 trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. 5 Civ. P. 56(e) advisory committee’s note on 1963 amendments). Procedurally, under summary 6 judgment practice, the moving party bears the initial responsibility of presenting the basis for its 7 motion and identifying those portions of the record, together with affidavits, if any, that it 8 believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; 9 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets 10 its burden with a properly supported motion, the burden then shifts to the opposing party to 11 present specific facts that show there is a genuine issue for trial. Anderson, 477 U.S. at 248; 12 Matsushita, 475 U.S. at 586–87; Auvil v. CBS “60 Minutes”, 67 F.3d 816, 819 (9th Cir. 1995) 13 (per curiam). 14 A clear focus on where the burden of proof lies as to the factual issue in question is crucial 15 to summary judgment procedures. Depending on which party bears that burden, the party seeking 16 summary judgment does not necessarily need to submit any evidence of its own. When the 17 opposing party would have the burden of proof on a dispositive issue at trial, the moving party 18 need not produce evidence which negates the opponent’s claim. See, e.g., Lujan v. Nat’l Wildlife 19 Fed’n, 497 U.S. 871, 885 (1990). Rather, the moving party need only point to matters which 20 demonstrate the absence of a genuine material factual issue. See Celotex, 477 U.S. at 324 21 (citation omitted) (“[W]here the nonmoving party will bear the burden of proof at trial on a 22 dispositive issue, a summary judgment motion may properly be made in reliance solely on the 23 pleadings, depositions, answers to interrogatories, and admissions on file.”). Indeed, summary 24 judgment should be entered, after adequate time for discovery and upon motion, against a party 25 who fails to make a showing sufficient to establish the existence of an element essential to that 26 party’s case, and on which that party will bear the burden of proof at trial. See id. at 322. 27 //// 28 //// 7 1 In such a circumstance, summary judgment must be granted, “so long as whatever is before the 2 district court demonstrates that the standard for entry of summary judgment, as set forth in [Rule 3 56(a)], is satisfied.” Id. at 323. 4 To defeat summary judgment the opposing party must establish a genuine dispute as to a 5 material issue of fact. This entails two requirements. First, the dispute must be over a fact(s) that 6 is material, i.e., one that makes a difference in the outcome of the case. Anderson, 477 U.S. at 7 248 (“Only disputes over facts that might affect the outcome of the suit under the governing law 8 will properly preclude the entry of summary judgment.”). Whether a factual dispute is material is 9 determined by the substantive law applicable for the claim in question. Id. If the opposing party 10 is unable to produce evidence sufficient to establish a required element of its claim that party fails 11 in opposing summary judgment. “[A] complete failure of proof concerning an essential element 12 of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. 13 at 323. 14 Second, the dispute must be genuine. In determining whether a factual dispute is genuine 15 the court must again focus on which party bears the burden of proof on the factual issue in 16 question. Where the party opposing summary judgment would bear the burden of proof at trial on 17 the factual issue in dispute, that party must produce evidence sufficient to support its factual 18 claim. Conclusory allegations unsupported by evidence are insufficient to defeat the motion. 19 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). Rather, the opposing party 20 must, by affidavit or as otherwise provided by Rule 56, designate specific facts that show there is 21 a genuine issue for trial. Anderson, 477 U.S. at 248; Devereaux, 263 F.3d at 1076 (citations 22 omitted). More significantly, to demonstrate a genuine factual dispute the evidence relied on by 23 the opposing party must be such that a reasonable juror “could return a verdict for [him] on the 24 evidence presented.” Anderson, 477 U.S. at 248, 252. Absent any such evidence there simply is 25 no reason for trial. 26 The court does not determine witness credibility. It believes the opposing party’s 27 evidence, and draws inferences most favorably for the opposing party. See id. at 249, 255; 28 Matsushita, 475 U.S. at 587. Inferences, however, are not drawn out of “thin air,” and the 8 1 proponent must adduce evidence of a factual predicate from which to draw inferences. Am. Int’l 2 Grp., Inc. v. Am. Int’l Bank, 926 F.2d 829, 837 (9th Cir. 1991) (Kozinski, J., dissenting) (citing 3 Celotex, 477 U.S. at 322). If reasonable minds could differ on material facts at issue, summary 4 judgment is inappropriate. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). On 5 the other hand, the opposing party “must do more than simply show that there is some 6 metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead 7 a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” 8 Matsushita, 475 U.S. at 587 (citation omitted). Thus, Rule 56 serves to screen cases lacking any 9 genuine dispute over an issue that is determinative of the outcome of the case. Defendants’ motion for summary judgment included a so-called “Rand notice” (ECF No. 10 11 44-3) to plaintiff informing him of the requirements for opposing a motion pursuant to Rule 56 of 12 the Federal Rules of Civil Procedure. See Woods v. Carey, 684 F.3d 934, 941 (9th Cir. 2012); 13 Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952, 14 957 (9th Cir. 1998) (en banc). 15 III. 16 ANALYSIS A. 17 Motion for Summary Judgment 1. 18 Deliberate Indifference to Serious Medical Needs To prevail on an Eighth Amendment claim predicated on the denial of medical care, a 19 plaintiff must show that: (1) he had a serious medical need; and (2) the defendant’s response to 20 the need was deliberately indifferent. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see 21 also Estelle v. Gamble, 429 U.S. 97, 106 (1976). Here, defendants concede that plaintiff’s 22 hypoglycemic episode was objectively serious. (ECF No. 44-1 at 7.) Furthermore, the Ninth Circuit has held that diabetes is “a serious medical need,” and that 23 24 “[l]eaving a diabetic . . . without proper food or insulin . . . creates an objectively, sufficiently 25 serious risk of harm.” Lolli v. County of Orange, 351 F.3d 410, 420 (9th Cir. 2003) (citation 26 omitted).1 Therefore, the court proceeds to consider whether defendants were deliberately 27 28 1 The plaintiff in Lolli was a pretrial detainee, not an inmate. Therefore, he brought his claim for deliberate indifference to medical needs under “the substantive due process clause of the 9 1 indifferent to his diabetes. For a prison official’s response to a serious medical need to be deliberately indifferent, the 2 3 official must “‘know[] of and disregard[] an excessive risk to inmate health.’” Peralta v. Dillard, 4 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc) (quoting Farmer v. Brennan, 511 U.S. 825, 837 5 (1994)). “[T]he official must both be aware of facts from which the inference could be drawn 6 that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 7 U.S. at 837. “Whether an official possessed such knowledge ‘is a question of fact subject to 8 9 demonstration in the usual ways, including inference from circumstantial evidence . . . .’” 10 Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000) (quoting Farmer, 511 U.S. at 842). Such 11 evidence may include: (1) an inmate’s notice to prison officials of his medical need2; (2) the 12 frequency or urgency of the notice3; (3) physical symptoms indicating a medical need, Vensor, 13 657 F. App’x at 697; Lolli, 351 F.3d at 421; and (4) whether prison officials mock or act callously 14 toward an inmate complaining of a medical need.4 Furthermore, a prison official’s knowing 15 disregard of an inmate’s serious medical need must cause the inmate harm. Jett, 439 F.3d at 16 1096.5 However, the harm need not be “substantial.” Id.; see also McGuckin v. Smith, 974 F.2d 17 Fourteenth Amendment.” 351 F.3d at 418–19. Nonetheless, the court applied “traditional Eighth Amendment standards.” Id. at 419. 18 2 20 Farmer, 511 U.S. at 848–49; Vensor v. Schell, 657 F. App’x 695, 697 (9th Cir. 2016) (unpublished memorandum); Lolli, 351 F.3d at 420–21; Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989). 21 3 19 22 23 24 25 26 27 28 Lee v. Ballesteros, 548 F. App’x 466, 466–67 (9th Cir. 2013) (unpublished memorandum); Jett, 439 F.3d at 1097–98; United States v. Gonzales, 436 F.3d 560, 574 (5th Cir. 2006), overruled on other grounds as stated in United States v. Garcia-Martines, 624 F. App’x 874, 879 n.12 (5th Cir. 2015); Lolli, 351 F.3d at 421; Hunt, 865 F.2d at 201. 4 Vensor, 657 F. App’x at 697; Danley v. Allen, 540 F.3d 1298, 1304, 1309 (11th Cir. 2008); Gonzales, 436 F.3d at 574; Odom v. S.C. Dep’t of Corrs., 349 F.3d 765, 771 (4th Cir. 2003); Johnson, 217 F.3d at 734–35; Jones v. Wheeler, No. 91-16627, 1992 WL 246935, at *2 (9th Cir. 1992) (unpublished memorandum); Mullen v. Smith, 738 F.2d 317, 318 (8th Cir. 1984) (per curiam). 5 But cf. Farmer, 511 U.S. at 845 (citation and bracketing omitted) (stating that “deliberate indifference does not require a prisoner seeking a remedy for unsafe conditions to await a tragic 10 1 1050, 1060 & n.12 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 2 104 F.3d 1133, 1136 (9th Cir. 1997). 3 Here, a reasonable juror could conclude that defendants were aware of and disregarded 4 plaintiff’s hypoglycemia. Plaintiff states that he informed defendants that he had recently 5 received his noon insulin shot but had not eaten lunch. He also states that he got sick at the 6 doctor’s office and told Parsons, but that defendants did not inform any medical personnel. 7 Further, he states that he told defendants that he needed emergency medical care during the return 8 trip to DVI, but that they continued to ignore him. Although defendants dispute these statements, 9 they admit that plaintiff complained “about his diabetes and lunch” at the doctor’s office. (ECF 10 No. 44-1 at 5.) In any event, plaintiff’s evidence, if believed, supports a reasonable inference that 11 he frequently notified defendants of his serious medical needs. 12 A reasonable juror could also conclude that plaintiff manifested symptoms of 13 hypoglycemia. He states that he told Parsons at the doctor’s office that he was feeling shaky, 14 nervous, confused, light-headed, and nauseated and having problems with his heart and vision. 15 Further, he states that he was trembling, sweating, and going in and out of consciousness while 16 defendants were at the hamburger restaurant. Defendants dispute that he exhibited these 17 symptoms. On summary judgment, however, plaintiff’s evidence “is to be believed.” Anderson, 18 477 U.S. at 255. Moreover, the Ninth Circuit has recognized that hypoglycemia may produce 19 such symptoms. Lolli, 351 F.3d at 420–21. Therefore, whether plaintiff exhibited such 20 symptoms is a genuine dispute of material fact. 21 Plaintiff’s evidence also supports a reasonable inference that defendants mocked him and 22 acted callously toward his serious medical needs. Plaintiff states that, after he complained to 23 Parsons at the doctor’s office, Parsons said that he was not going to die and would feel better once 24 he got his “ass” back in the van. Plaintiff further states that, during the return to DVI, he told 25 defendants that he urgently needed medical care, but that they ignored him and stopped at a 26 event . . . before obtaining relief”); Del Raine v. Williford, 32 F.3d 1024, 1035 (7th Cir. 1994) (“To only find an Eighth Amendment violation from inadequate housing when the inmate’s health is endangered [erroneously] suggests that frostbite, hypothermia, or a similar infliction is an absolute requisite to the inmate’s challenge.”). 11 27 28 1 hamburger restaurant. Natale, 318 F.3d at 582 (citation omitted) (“We have . . . found deliberate 2 indifference in situations where necessary medical treatment is delayed for non-medical 3 reasons.”). And there is no indication that defendants offered plaintiff any food/drink. Moreover, 4 plaintiff states that defendants ordered him out of the van upon returning to DVI even though he 5 was hypoglycemic and had swollen ankles and feet. These actions and remarks suggest deliberate 6 indifference. 7 Additionally, a reasonable juror could conclude that defendants’ alleged disregard of 8 plaintiff’s medical needs harmed him. As noted, the Ninth Circuit has recognized that 9 hypoglycemia may produce the symptoms of which plaintiff complains. Lolli, 351 F.3d at 420– 10 21. Likewise, a judge in this District has held that “sweating, panic, insatiable thirst, elevated 11 heart rate, and trembling as a result of a diabetic reaction can satisfy the harm prong of deliberate 12 indifference.” Melendez v. Hunt, 1:13-cv-00279-BAM (PC), 2016 WL 5156469, at *10 (E.D. 13 Cal. Sep. 21, 2016) (citation and bracketing omitted). 14 Defendants argue that plaintiff did not suffer harm because: (1) his conclusory statements 15 are his only evidence of harm; (2) Dr. Win’s affidavit shows that his diabetes is controlled and 16 that the hypoglycemic episode did not permanently harm him; and (3) he is not an expert witness 17 and is not competent to testify regarding the harm he alleges. 18 These arguments lack merit. Regarding (1), plaintiffs can show that they suffered 19 symptoms of diabetes through their own testimony. Lolli, 351 F.3d at 421; Melendez, 2016 WL 20 5156469, at *10. Furthermore, it is undisputed that plaintiff suffered hypoglycemia and was 21 treated for low blood sugar. Thus, it is incorrect to assert that plaintiff’s supposedly conclusory 22 statements are his only evidence of harm. (ECF No. 44-1 at 1.) 23 Dr. Win’s affidavit does not compel the conclusion that plaintiff suffered no harm. Dr. 24 Win states that, while plaintiff’s blood sugar was low, “he did not report any associated 25 symptoms or issues as a result.” (ECF No. 44-5 ¶ 4.) However, plaintiff states that he suffered 26 various symptoms, and whom to believe is a question for the jury. Anderson, 477 U.S. at 255 27 (“Credibility determinations . . . are jury functions . . . .”). Additionally, even if the 28 hypoglycemic episode did not “permanently” harm plaintiff, claims for deliberate indifference to 12 1 medical needs do not require permanent harm. See supra p. 11 & n.5; infra p. 14. 2 Nor must plaintiff be an expert to testify to at least some of the harm that he alleges. In 3 relevant part, plaintiff states that: (1) he was feeling shaky, nervous, confused, light-headed, and 4 nauseated; (2) his heart was pounding; (3) he had blurred vision; and (4) he was trembling, 5 sweating, and going in and out of consciousness. To reiterate, diabetic inmates may establish 6 such harm through their own testimony. Lolli, 351 F.3d at 421; Melendez, 2016 WL 5156469, at 7 *10. Granted, plaintiff alleges other injuries. (ECF No. 30 at 8–9 (alleging “further heart strain, 8 kidney damage, eye damage, blood vessel damage[,] and nerve damage”).) However, plaintiff 9 need only show that defendants’ alleged deliberate indifference harmed him, which a reasonable 10 juror could conclude based on his other alleged injuries. Therefore, the court need not consider 11 whether his alleged further heart strain, kidney damage, eye damage, blood vessel damage, and 12 nerve damage harmed him. This issue is more properly raised in a potential motion in limine.6 13 Similarly, defendants seem to argue that plaintiff failed to show that the hypoglycemic 14 episode “seriously” affected his diabetes. In their assessment, he must make this showing 15 because he allegedly asserted a claim for deliberate indifference based a “delay in treatment 16 rather than a failure to treat.”7 But, as indicated above, the Ninth Circuit has rejected the 17 argument that claims alleging a delay in medical treatment require a showing of “substantial,” 18 “significant,” or “serious” harm. See Jett, 439 F.3d at 1096; McGuckin, 974 F.2d at 1060 & n.12; 19 supra p. 11 n.5; cf. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Accordingly, this argument fails. 20 //// 21 6 22 23 24 25 26 27 The court is not suggesting that plaintiff would be unable to establish such harm. For instance, plaintiff has submitted a letter from Dr. Tesluk purporting to show that his glaucoma was stable and that he had improved eye pressure as of July 23, 2013, the date of his hypoglycemic episode. (ECF No. 47 at 26.) Subsequently, Dr. Tesluk performed two surgeries on plaintiff’s eye, allegedly to relieve increased eye pressure. (ECF No. 47 at 4, 37–38.) Plaintiff also indicated that he wants to call Dr. Tesluk as a witness at trial. (ECF No. 46 at 1.) Therefore, plaintiff’s evidence arguably supports the inference that his hypoglycemic episode caused eye damage. 7 (ECF No. 44-1 at 8 (citing Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002); Wood v. Housewright, 900 F.2d 1332 (1990); Shapley v. Nev. Bd. of State Prison Commr’s, 766 F.2d 404 (9th Cir. 1985)).) 28 13 1 Additionally, defendants argue that they were not deliberately indifferent to plaintiff’s 2 diabetes because: (1) he “received his lunch meal with his breakfast service that day”; (2) the 3 transport was “expected to be short and . . . not interfere with a regular meal service”; and (3) 4 “Walls personally escorted [plaintiff] to the medical clinic.” (ECF No. 44-1 at 5; see also id. at 1, 5 8.) However, plaintiff states that he told defendants before they left that he did not have lunch. 6 He also states that he repeatedly told defendants that he needed food and exhibited symptoms of 7 hypoglycemia. Further, he states that defendants failed to seek medical assistance during the trip 8 even though they visited a doctor’s office. And this failure, if established, may violate CDCR 9 regulations. See Cal. Code Regs. tit. 15, § 3354(d). 10 True, it is undisputed that plaintiff was treated for hypoglycemia when he returned to 11 DVI. However, plaintiff states that he collapsed after being ordered out of the van. Coupled with 12 his other evidence, this statement supports a reasonable inference that his collapse, not his prior 13 complaints or symptoms, induced defendants to take him to the medical clinic. Defendants note 14 that policy requires all inmates transported offsite to receive a medical examination when they 15 return to DVI. But this fact does not compel the conclusion that defendants took plaintiff to the 16 medical clinic to get help for his hypoglycemia. And, even if it did, there are genuine factual 17 disputes regarding whether defendants should have sought medical aid sooner. Accordingly, 18 defendants’ counterarguments lack merit. 19 2. 20 Qualified Immunity Qualified immunity protects government officials from liability for civil damages where a 21 reasonable official would not have known that his conduct violated a clearly established right. 22 Anderson v. Creighton, 483 U.S. 635, 638–39 (1987). In resolving questions of qualified 23 immunity, “courts engage in a two-pronged inquiry.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 24 (2014) (per curiam). “The first asks whether the facts, taken in the light most favorable to the 25 party asserting the injury, . . . show the officer’s conduct violated a federal right.” Id. (citation 26 and bracketing omitted). “The second prong . . . asks whether the right in question was clearly 27 established at the time of the violation.” Id. at 1866 (citation omitted). 28 //// 14 A right is “clearly established” when “the contours of the right [are] sufficiently clear that 1 2 a reasonable official would understand that what he is doing violates that right.” Anderson, 483 3 U.S. at 640. Clearly established law should not be defined “at a high level of generality”; rather, 4 it “must be particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017) 5 (per curiam) (citation omitted). While this standard does not require “a case directly on point,” 6 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), courts typically should identify analogous cases, 7 i.e., ones in which prison officials “acting under similar circumstances” violated the Eighth 8 Amendment, White, 137 S. Ct. at 552. To be analogous, however, the case need not be 9 “materially similar.”8 10 In the Ninth Circuit, to assess whether a right is clearly established, courts first look to 11 “Supreme Court and Ninth Circuit law existing at the time of the alleged act.” Cmty. House, Inc. 12 v. City of Boise, 623 F.3d 945, 967 (9th Cir. 2010) (citation omitted). Absent binding precedent, 13 courts should consider all relevant decisional law. Capoeman v. Reed, 754 F.2d 1512, 1514 (9th 14 Cir. 1985). Unpublished circuit and district court decisions inform the analysis. Bahrampour v. 15 Lampert, 356 F.3d 969, 977 (9th Cir. 2004); Krug v. Lutz, 329 F.3d 692, 699 (9th Cir. 2003). 16 Here, it was clearly established by the date of the incident that defendants’ alleged 17 conduct was unlawful. The Ninth Circuit has held that a diabetic’s “obviously sickly appearance 18 and his explicit statements that he needed food . . . could easily lead a jury to find that the officers 19 consciously disregarded a serious risk to [his] health.” Lolli, 351 F.3d at 421. Lolli also 20 established that hypoglycemia may produce many of the symptoms of which plaintiff complains 21 and that such symptoms constitute harm for deliberate indifference purposes. Id. at 420–21; see 22 also Melendez, 2016 WL 5156469, at *10. Similarly, it is clearly established that an inmate can 23 show deliberate indifference to serious medical needs when: (1) he frequently and/or urgently 24 notifies officials of such needs; (2) he displays signs of such needs; and (3) prison officials mock 25 8 26 27 28 Hope v. Pelzer, 536 U.S. 730, 739 (2002); see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (stating that, “in an obvious case,” general legal standards may clearly establish law “without a body of relevant cases” (citing Hope, 536 U.S. at 738)); Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) (citation omitted) (“[E]ven if there is no closely analogous case law, a right can be clearly established on the basis of common sense.”). 15 1 him or behave callously toward him. See supra pp. 10–11 & nn. 2–4. Accordingly, defendants 2 do not enjoy qualified immunity. 3 B. Motion for Reconsideration 4 Rule 54(b) provides that Courts may revise interlocutory orders “at any time before the 5 entry of a judgment.” Fed. R. Civ. P. 54(b); see also Moses H. Cone Mem. Hosp. v. Mercury 6 Const. Corp., 460 U.S. 1, 12 (1983) (stating that “every order short of a final decree is subject to 7 reopening at the discretion of the district judge”). Consonantly, the Ninth Circuit has held that 8 “[a]s long as a district court has jurisdiction over the case, . . . it possesses the inherent procedural 9 power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be 10 sufficient.” City of L.A., Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 11 2001) (citing cases). Such cause may include “new or different facts or circumstances” that could 12 not be shown “at the time of the prior motion.” See E.D. Cal. R. 230(j). 13 Here, plaintiff has not shown cause to reconsider his motion to compel. The court held 14 that his request for documents instructing officers about their duties when an inmate falls ill 15 during transport was untimely. Plaintiff has not shown otherwise. Granted, counsel for 16 defendants said that she was willing to look for such information. However, the record suggests 17 that she expressed such willingness as a courtesy. Furthermore, the record reflects that plaintiff 18 received documents about CDCR’s transport policies. (See ECF No. 36-1 at 46–75; see also ECF 19 No. 43 at 6.) Accordingly, plaintiff’s motion to compel should be denied. 20 C. Motion for Subpoenas 21 Apparently, plaintiff seeks to call Dr. Win, Dr. Tesluk, and Nurse Legaspi as witnesses at 22 a potential trial. However, because the case has not been scheduled for trial, this request is 23 premature. Cf. Ward v. News Grp. Newspapers, No. CV–88–3340–JMI(TX), 1990 WL 256836, 24 at *1 (C.D. Cal. Aug. 27, 1990) (“Rule 45 of the Federal Rules of Civil Procedure provides that 25 the Court may issue subpoenas for attendance of witnesses at hearings and trials . . . .”); Charles 26 Alan Wright & Arthur R. Miller., 9A Federal Practice and Procedure § 2455 (3d ed. 2017) 27 (“According to Federal Rule 45(a)(1)(A)(iii) any properly issued subpoena may command each 28 person to whom it is directed to attend and give testimony at a time and place specified in the 16 1 subpoena.”). However, to the extent that plaintiff seeks to depose these individuals, the discovery 2 deadline has long passed. (ECF No. 34; ECF No. 43 at 2.) Therefore, this motion should be 3 denied without prejudice. 4 IV. CONCLUSION 5 For the foregoing reasons, IT IS HEREBY RECOMMENDED that: 6 1. Defendants’ motion for summary judgment (ECF No. 44) be denied; 7 2. Plaintiff’s motion for reconsideration (ECF No. 45) be denied; and 8 3. Plaintiff’s motion for subpoenas (ECF No. 46) be denied without prejudice. 9 These findings and recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. The document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be filed and served within seven days after service of the objections. 15 The parties are advised that failure to file objections within the specified time may result in 16 waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th 17 Cir. 1991). 18 Dated: June 12, 2017 19 20 21 22 23 24 DLB:11 DLB1/prisoner-civil rights/moor1232.msj fr 25 26 27 28 17

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