Parks v. Rolfing et al

Filing 147

ORDER signed by Chief District Judge Kimberly J. Mueller on 2/23/2021 ADOPTING 144 Findings and Recommendations in full; GRANTING IN PART AND DENYING IN PART 121 Motion for Summary Judgment; Granted with respect to Plaintiff's remaining c laims against defendant Dr. Rohlfing; DENIED with respect to Plaintiff's claim that defendant Miranda DENIED Plaintiff Ibuprofen on or about 4/8/2014; and GRANTED with respect to Plaintiff's other remaining claims against defendant Miranda. This matter is referred back to the assigned Magistrate Judge for all further pretrial proceedings. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Kenneth Wayne Parks,

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No. 2:15-cv-1505-KJM-CKD
Plaintiff,

ORDER

v.
Jeffrey Rohlfing, et al.,
Defendants.

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Plaintiff Kenneth Parks, 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 as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 22, 2020, the magistrate judge filed findings and recommendations, which

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recommend granting the defendants’ amended motion for summary judgment in part and denying

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it in part. See Am. Mot. Summ. J., ECF No. 121; F&Rs, ECF No. 144. These findings and

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recommendations were served on the parties and contained notice that any objections to the

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findings and recommendations were to be filed within fourteen days. Parks did not object.

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Defendants Miranda and Rohlfing object in part; they argue the magistrate judge should have

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granted summary judgment in full.

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

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court has conducted a de novo review of this case. Having reviewed the file, the court finds the
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findings and recommendations to be supported by the record and by the proper analysis. The

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court writes separately here to address the defendants’ objections.

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The magistrate judge recommends denying summary judgment of the claim against

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Miranda, a physician’s assistant who treated Mr. Parks. See F&Rs at 7–8. Parks alleges that

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Miranda was deliberately indifferent to his serious medical needs in violation of the Eighth

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Amendment because, among other reasons, Miranda denied Mr. Parks ibuprofen. See id. at 17.

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Miranda moved for summary judgment, arguing the medical records showed that he had a

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legitimate reason to deny Parks’s request—“because [Parks] was scheduled for surgery, and

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ibuprofen would thin his blood and should not be taken.” See id. at 7; Miranda Decl. ¶ 20,

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ECF No. 118-6.
The magistrate judge correctly recommended against summary judgment on the basis of

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these records and Miranda’s declaration. First, as the magistrate judge explained, no evidence in

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the record shows beyond dispute that Parks was in fact scheduled for surgery at the time Miranda

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refused his request for ibuprofen, let alone that the surgery would occur soon after the

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appointment. See F&Rs at 7. Second, Parks would testify at trial that he was not scheduled for

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surgery, that he “attempted to tell” Miranda he was not scheduled for surgery, and that Miranda

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“ignored” him. See Parks Decl. ¶ 58, ECF No. 140-1. Because the reasons for Miranda’s refusal

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are material and genuinely disputed, summary judgment must be denied.

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Miranda’s objections do not show otherwise. His objections are based on notes about an

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appointment a few days before his decision not to give Parks ibuprofen. See Objs. at 2–3 (citing

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Miranda Decl. ¶ 19 & Ex. M, ECF No. 118-6). In those notes, Miranda wrote that according to

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“RN Weeks,” Parks was scheduled for surgery at some unspecified date. Miranda Decl. Ex. M.

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To the extent Miranda relies on these notes to prove Parks was truly scheduled for surgery, they

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are inadmissible hearsay, and summary judgment cannot be granted on the basis of inadmissible

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evidence. See Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1121 (E.D. Cal.

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2006). To the extent Miranda relies on the notes to prove some other relevant fact, such as notice,

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the central dispute described above would remain unresolved. Parks would testify at trial that he

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was not scheduled for surgery and that he attempted unsuccessfully to convince Miranda this was
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so, and no evidence suggests a surgery at some unspecified point in the future is good reason to

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withhold ibuprofen.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations filed September 22, 2020, are adopted in full.

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2.

Defendants’ amended motion for summary judgment (ECF No. 121) is:

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A.

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Dr. Rohlfing;

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B.

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C.

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Denied with respect to plaintiff’s claim that defendant Miranda denied
plaintiff Ibuprofen on or about April 8, 2014; and

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Granted with respect to plaintiff’s remaining claims against defendant

Granted with respect to plaintiff’s other remaining claims against defendant
Miranda.

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This matter is referred back to the assigned magistrate judge for all further pretrial
proceedings.

IT IS SO ORDERED.
DATED: February 23, 2021.

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