(PC) Solano v. Perez, et al

Filing 64

ORDER signed by District Judge Kimberly J. Mueller on 9/29/2017 REJECTING #43 Findings and Recommendations; DENYING #36 Motion for Summary Judgment; REFERRING this matter back to Magistrate Judge Edmund F. Brennan for further proceedings. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LIBRADO SOLANO, JR.,

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Plaintiff,

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v.

No. 2:15-cv-1064-KJM-EFB P

ORDER

PEREZ, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 7, 2017, the magistrate judge filed findings and recommendations,

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations, ECF No. 50, and defendants have filed a reply to

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plaintiff’s objections. ECF No. 51.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having carefully reviewed the entire

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file, for the reasons set forth below the court declines to adopt the findings and recommendations.
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This action arises from events on April 24, 2013, when plaintiff was transported to

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Methodist Hospital for hernia surgery and returned to Folsom State Prison following the surgery,

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on April 25, 2013. In relevant part, plaintiff alleges that on April 24, 2013, following his return to

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Folsom State Prison, he was placed in a holding cage:

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Plaintiff was in holding cage awaiting Ad-Seg Escort Officers for a
long time and his pain medication began wearing off. Officers
Perez and Peterson arrived to escort plaintiff to Ad-Seg. Perez put
waist-chain on Plaintiff too tight, causing distress to the surgery.
Plaintiff asked Perez to loosen waist-chain and explained the pain it
was causing but Perez ignored him. Plaintiff asked for a wheelchair
stating that he was in no condition to walk because he just had
surgery and doing so would be severely painful. Defendants Perez
and Peterson looked around for a wheelchair, said one was not
available and Plaintiff had no choice, forcing Plaintiff to walk with
deliberate indifference to the pain and suffering they caused. After
forcing Plaintiff to walk over 30 yards with light pushing, they
came to stairs and Plaintiff once again informed Defendants that he
was hurting too much and should not proceed. Perez said he would
help and did so by pushing Plaintiff down the stairs. Plaintiff was
shaking in agony when he reached the bottom of the stairs. Perez
and Peterson ignored Plaintiff’s distress and forced him to walk
another 30 yards to Ad-Seg, then up 3 tiers of stairs. Perez and
Peterson left Plaintiff in severe excruciating pain.

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ECF No. 17 at 5 (verbatim transcription).

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Plaintiff also alleges that

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[o]n April 25, 2013, Officer George came to Plaintiff’s cell and told
him he had to go to a committee meeting with Warden R. M. Hill.
Plaintiff told George he just had surgery and needed to recover.
George demanded Plaintiff get up, get ready, stating he had no
choice. Plaintiff was forced to dress in agony and was escorted to
committee. The Warden and committee were not ready and George
forced Plaintiff to stand facing the wall for 30 minutes even though
Plaintiff was shaking due to pain. George ignored Plaintiff’s
distress. Officers Hahn and Freyance were able to see that Plaintiff
was shaking and asked if he was okay. Plaintiff told them he had
surgery the prior morning, wasn’t feeling well and went “man
down” the night before. Hahn told George that Plaintiff should be
sitting down, but the door opened for committee. . . . After
committee, George escorted Plaintiff down 3 tiers of stairs, then
told Plaintiff he had to go to another appointment in TTA. Plaintiff
told George he wasn’t feeling well and could not walk that far
without experiencing more severe pain. George told Plaintiff he did

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not have a choice, grabbed the waist-chain and forced Plaintiff
down the 3 tiers of stairs they had just climbed. George ignored the
fact that plaintiff was shaking twice as much from pain and
suffering agony.

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Id. at 6. The magistrate judge’s order screening the FAC found “that it states potentially

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cognizable Eighth Amendment deliberate indifference to medical needs claims against defendants

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. . . George, Perez, and Peterson. [Footnote omitted.] See generally ECF No. 17 (alleging that

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. . . defendants George, Perez, and Peterson forced plaintiff to stand, walk, and navigate stairs

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despite plaintiff’s complaints of pain and physical limitations following surgery).” ECF No. 20 at

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In their pending motion, defendants Peterson, George1 and Perez seek summary

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judgment on the ground that they are entitled to qualified immunity on plaintiff’s claim that they

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“were deliberately indifferent to his serious medical needs by failing to escort him in a wheelchair

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following his hernia repair.” ECF No. 36 at 3. The magistrate judge finds each of the moving

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defendants entitled to qualified immunity. ECF No. 43 at 6-10. For purposes of qualified

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immunity, the findings and recommendations define “[t]he relevant question” as “whether a

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reasonable officer in defendants’ situation could have believed that transporting plaintiff without

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a wheelchair was proper. . . .” Id. at 9. The undisputed evidence shows that the discharge

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instructions for plaintiff following his hernia surgery “limited the amount of weight plaintiff

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could lift, stressed the necessity of avoiding ‘heavy exertion’, but also advised that he should

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walk three times a day” and that a physician at Folsom, Dr. S. Reddy, “emphasize[d] the absence

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of any documented limitations on walking or climbing stairs and offers the opinion that

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‘[laparascopic, inguinal hernia repairs are outpatient surgeries and patients are expected to walk

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after the operation and resume normal activities’” and further opined that “plaintiff had no need

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of a wheelchair on either April 24 or April 25 of 2013.” Id. at 7. Based on this record, the

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magistrate judge finds that reasonable correctional officers in defendants’ position “could have

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believed [the] decision to make plaintiff walk was proper.” Id. at 9. Plaintiff objects to reliance

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Defendant George’s last name is apparently spelled Geordge. See Answer to First
Amended Complaint, ECF No. 26.
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on the discharge instructions to support a conclusion that plaintiff did not need a wheelchair in the

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immediate aftermath of the surgery given the level of pain he contends he was experiencing. See

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ECF No. 50 at 8.

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Qualified immunity “protects government officials ‘from liability for civil

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damages insofar as their conduct does not violate clearly established statutory or constitutional

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rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,

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231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Two factors are at work in

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determining whether the defense of qualified immunity applies: (1) whether the facts alleged,

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viewed in the light most favorable to the plaintiff, “make out a violation of a constitutional right”;

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and (2) “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged

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misconduct.” Pearson, 555 U.S. at 232 (internal citation omitted). The court is not required to

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consider the two steps in sequential order, and may find a defendant entitled to qualified

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immunity if either factor is absent, i.e., if either the alleged facts do not make out the violation of

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a constitutional right, or the right at issue was not “clearly established” at the relevant time. Id. at

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236-37.

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Here, plaintiff is proceeding on Eighth Amendment claims that defendants were

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deliberately indifferent to his serious medical needs when he returned to Folsom State Prison

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following hernia surgery.

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In the Ninth Circuit, the test for deliberate indifference consists of
two parts. McGuckin v. Smith, 974 F.2d 1050 (9th Cir.1991),
overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d
1133 (9th Cir.1997) (en banc). First, the plaintiff must show a
“serious medical need” by demonstrating that “failure to treat a
prisoner’s condition could result in further significant injury or the
‘unnecessary and wanton infliction of pain.’” Id. at 1059 (citing
Estelle [v. Gamble], 429 U.S. [97] at 104, 97 S. Ct. 285 [(1976)]).
Second, the plaintiff must show the defendant’s response to the
need was deliberately indifferent. Id. at 1060. This second prong—
defendant’s response to the need was deliberately indifferent—is
satisfied by showing (a) a purposeful act or failure to respond to a
prisoner's pain or possible medical need and (b) harm caused by the
indifference. Id. Indifference “may appear when prison officials
deny, delay or intentionally interfere with medical treatment, or it

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may be shown by the way in which prison physicians provide
medical care.” Id. at 1059 (quoting Hutchinson v. United States,
838 F.2d 390, 392 (9th Cir.1988)).

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Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
As noted, the magistrate judge finds that defendants, all of whom were

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correctional officers at Folsom State Prison during all times relevant to this action, were entitled

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to rely on discharge instructions and “the opinions and instructions of prison medical providers to

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determine whether a given inmate required a wheelchair.” ECF No. 43 at 7 (citing ECF No. 36 at

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10). Defendants present no evidence of when, if ever, they became aware of the discharge

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instructions and the medical opinions that plaintiff did not require a wheelchair after his hernia

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operation. Plaintiff’s averments suggest that the discharge instructions and medical reports were

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not located by staff until sometime after defendants Perez and Peterson escorted plaintiff to his

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cell and then back to the medical office in the administrative segregation unit. See ECF No. 39 at

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7-8. There is no evidence defendant George was aware of the instructions or the medical reports

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on April 25, 2013. Absent evidence that defendants knew about the discharge instructions, the

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court cannot find defendants were entitled to rely on them in denying plaintiff’s request for a

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wheelchair. It is well established that ignoring complaints of pain can violate the Eighth

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Amendment. See, e.g., McGuckin, supra. “The determination of whether a reasonable officer

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could have believed his conduct was lawful is a determination of law that can be decided on

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summary judgment only if the material facts are undisputed.” LaLonde v. County of Riverside,

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204 F.3d 947, 953 (9th Cir. 2000). It is not clear defendants were aware of anything other than

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plaintiff’s subjective complaints of pain when they denied him a wheelchair, nor is there evidence

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they relied on medical opinion to deny plaintiff’s request. Defendants are not entitled to

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summary judgment on the ground of qualified immunity.

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For all of the foregoing reasons, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 7, 2017, are not adopted;

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2. Defendants Perez, George and Peterson’s motion for summary judgment (ECF

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No. 36) is denied; and

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3. This matter is referred back to the assigned magistrate judge for further

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proceedings.

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DATED: September 29, 2017.

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UNITED STATES DISTRICT JUDGE

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