Lee v. Owens
Filing
31
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 05/28/19 RECOMMENDING that defendants' motion for summary judgment 19 be granted adn the claims against defendant Owens be dismissed. Judgment be entered for defendant. Motion for Summary Judgment 19 referred to Judge John A. Mendez. Objections due within 21 days. (Plummer, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
BEN LEE,
12
Plaintiff,
13
14
No. 2:16-cv-0123 JAM AC P
v.
FINDINGS & RECOMMENDATIONS
KEN OWENS,
15
Defendants.
16
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
17
18
U.S.C. § 1983. Defendant’s motion for summary judgment, ECF No. 19, is now before the court.
19
Plaintiff has filed a response (ECF Nos. 23-25) and defendant has replied (ECF No. 28).
20
I.
Procedural History
The court screened the first amended complaint and found that plaintiff stated cognizable
21
22
claims under the Eighth Amendment and state tort law. ECF No. 12. Defendant Owens
23
answered the complaint (ECF No. 17), filed the instant motion for summary judgment following
24
the close of discovery.
25
II.
Plaintiff’s Allegations
26
Plaintiff alleges that, on March 26, 2015, Owens violated his rights under the Eighth
27
Amendment when he failed to take action after accidently giving him the wrong medication.
28
ECF No. 11 at 3-4. Plaintiff also raises state tort claims for negligently administering the wrong
1
1
medication and failing to provide treatment. Id. at 6.
2
According to plaintiff, defendant accidentally administered the wrong medication to him
3
and realized his mishap when he moved onto the next cell and noticed he was still in possession
4
of plaintiff’s medication. Id. at 4. After learning of his mistake, defendant offered plaintiff his
5
correct medication, but made no attempt to determine what he had accidentally given to plaintiff
6
or treat him for ingesting the incorrect medication. Id. Defendant’s failure to treat led to plaintiff
7
feeling light headed, nauseous, and dizzy, as well as experiencing stomach pains, cold-sweats,
8
and uncontrollable vomiting. Id. Plaintiff told an inmate porter to tell officers that he was “man-
9
down” and the officers took plaintiff to the hospital where he received treatment. Id.
10
III.
Motion for Summary Judgment
11
A.
12
Defendant argues that he was not deliberately indifferent to plaintiff’s medical needs
Defendant’s Arguments
13
because he was unaware that plaintiff suffered from a serious medical need and plaintiff cannot
14
establish that his medical condition was serious or painful. ECF No. 19 at 17-20. He also argues
15
that he was not negligent in administering medication to plaintiff because plaintiff received his
16
correct medication and plaintiff cannot establish otherwise. Id. at 12-15.
17
B.
18
It is well-established that the pleadings of pro se litigants are held to “less stringent
19
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972)
20
(per curiam). Nevertheless, “[p]ro se litigants must follow the same rules of procedure that
21
govern other litigants.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citations omitted),
22
overruled on other grounds, Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en
23
banc). However, the unrepresented prisoners’ choice to proceed without counsel “is less than
24
voluntary” and they are subject to “the handicaps . . . detention necessarily imposes upon a
25
litigant,” such as “limited access to legal materials” as well as “sources of proof.” Jacobsen v.
26
Filler, 790 F.2d 1362, 1364-65 & n.4 (9th Cir. 1986) (alteration in original) (citations and internal
27
quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of “strict
28
////
Plaintiff’s Response
2
1
literalness” with respect to the requirements of the summary judgment rule. Id. at 1364 n.4
2
(citation omitted).
3
The court is mindful of the Ninth Circuit’s more overarching caution in this context, as
4
noted above, that district courts are to “construe liberally motion papers and pleadings filed by
5
pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder,
6
611 F.3d 1144, 1150 (9th Cir. 2010) (citation omitted). Accordingly, although plaintiff has
7
largely complied with the rules of procedure, the court will consider the record before it in its
8
entirety. However, only those assertions in the opposition which have evidentiary support in the
9
record will be considered.
10
In his opposition, plaintiff reiterates that defendant negligently gave him the wrong
11
medication and then failed to treat him, and that he suffered harm due to defendant’s deliberate
12
indifference. ECF No. 23.
13
IV.
Legal Standards for Summary Judgment
14
Summary judgment is appropriate when the moving party “shows that there is no genuine
15
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
16
Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden
17
of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627
18
F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The
19
moving party may accomplish this by “citing to particular parts of materials in the record,
20
including depositions, documents, electronically stored information, affidavits or declarations,
21
stipulations (including those made for purposes of the motion only), admissions, interrogatory
22
answers, or other materials” or by showing that such materials “do not establish the absence or
23
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
24
support the fact.” Fed. R. Civ. P. 56(c)(1).
25
“Where the non-moving party bears the burden of proof at trial, the moving party need
26
only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle
27
Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).
28
Indeed, summary judgment should be entered, “after adequate time for discovery and upon
3
1
motion, against a party who fails to make a showing sufficient to establish the existence of an
2
element essential to that party’s case, and on which that party will bear the burden of proof at
3
trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element
4
of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such
5
a circumstance, summary judgment should “be granted so long as whatever is before the district
6
court demonstrates that the standard for the entry of summary judgment, as set forth in Rule
7
56(c), is satisfied.” Id.
8
If the moving party meets its initial responsibility, the burden then shifts to the opposing
9
party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec.
10
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted). In attempting
11
to establish the existence of this factual dispute, the opposing party may not rely upon the
12
allegations or denials of its pleadings but is required to tender evidence of specific facts in the
13
form of affidavits, and/or admissible discovery material, in support of its contention that the
14
dispute exists. See Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in
15
contention is material, i.e., a fact “that might affect the outcome of the suit under the governing
16
law,” and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return
17
a verdict for the nonmoving party,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
18
In the endeavor to establish the existence of a factual dispute, the opposing party need not
19
establish a material issue of fact conclusively in its favor. T.W. Elec. Serv., Inc. v. Pac. Elec.
20
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat’l Bank of Ariz. v. Cities
21
Serv. Co., 391 U.S. 253, 288-89 (1968)). It is sufficient that “‘the claimed factual dispute be
22
shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Id.
23
Thus, the “purpose of summary judgment is to pierce the pleadings and to assess the proof in
24
order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and
25
internal quotation marks omitted).
26
“In evaluating the evidence to determine whether there is a genuine issue of fact, [the
27
court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls
28
v. Cent. Costa Cnty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the
4
1
opposing party’s obligation to produce a factual predicate from which the inference may be
2
drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to
3
demonstrate a genuine issue, the opposing party “must do more than simply show that there is
4
some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations
5
omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the
6
non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391
7
U.S. at 289).
8
On May 21, 2018, defendants served plaintiff with notice of the requirements for opposing
9
a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 20; see Klingele
10
v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988); Rand v. Rowland, 154 F.3d 952, 960 (9th Cir.
11
1998) (en banc) (movant may provide notice).
12
V.
Undisputed Material Facts
13
The following facts are undisputed unless specified otherwise.
14
At all times relevant to the complaint, plaintiff was an inmate at California State Prison
15
(CSP)-Sacramento and defendant was employed there as a licensed vocational nurse.1
16
Defendant’s Undisputed Statement of Facts (DSUF) (ECF No. 21) ¶¶ 1, 9-10; Response to DSUF
17
(ECF No. 24) ¶ 1, 9-10.
18
On March 26, 2015, defendant was conducting a “med pass,” which is a task assigned to
19
nursing staff to distribute prescribed medication to inmates. DSUF ¶ 11; Response to DSUF ¶ 11.
20
At the time, plaintiff was prescribed mirtazapine, while his neighboring inmate was prescribed
21
methadone. DSUF ¶¶ 3, 25; Response to DSUF ¶¶ 3, 25. During med pass, defendant gave
22
plaintiff a pill. DSUF ¶ 21; Response to DSUF ¶ 21. At this point, the parties’ facts briefly
23
diverge.
24
25
Defendant avers that after he gave plaintiff his medication, he momentarily believed that
plaintiff had been given the wrong medication when he realized that he did not have plaintiff’s
26
27
28
1
Defendant’s statement of facts states that he was working on C yard on March 26, 2016. DSUF
¶ 10. This appears to be a typographical error, and plaintiff has stated that, assuming defendant
meant 2015, DSUF ¶ 10 is undisputed. Response to DSUF ¶ 10.
5
1
neighbor’s medication. DSUF ¶¶ 17-18. However, after speaking with plaintiff and reviewing
2
his own conduct, defendant realized that he had failed to fill the neighboring inmate’s prescription
3
and had given plaintiff his correct medication. DSUF ¶¶ 19-20. Defendant then told plaintiff’s
4
neighbor that he would return with his medication after he completed the second-tier med pass.
5
DSUF ¶ 23. After completing the second tier, defendant did not have any extra medication
6
envelopes and returned to the nursing station, filled the neighboring inmate’s prescription for
7
methadone, and administered the methadone to plaintiff’s neighbor. DSUF ¶¶ 24, 26-27.
8
9
Plaintiff asserts that after defendant gave him medication, defendant moved onto the next
cell and called plaintiff to get his medication. Plaintiff’s Statement of Facts (PSUF) (ECF No.
10
25) ¶ 21. In response, plaintiff told defendant that he was “right here,” and then asked defendant
11
what medication he was given if defendant still had his medication. PSUF ¶¶ 22, 24.2 Instead of
12
responding, defendant continued to complete the second-tier med pass. PSUF ¶ 25. Defendant
13
then returned and offered plaintiff his prescribed mirtazapine, saying that he gave plaintiff his
14
neighbor’s medication by mistake and had plaintiff’s if he wanted to take it. PSUF ¶ 27. Plaintiff
15
refused the medication and began raising concerns regarding the ingestion of the incorrect
16
prescription. PSUF ¶¶ 28, 29. In response, defendant stated “Man, you’re acting like a baby,
17
you’ll be fine.” PSUF ¶ 30. He then walked away without taking any action to assess or address
18
the potential harm caused by taking the wrong medication. PSUF ¶¶ 34-37.3
19
20
21
22
23
24
25
26
27
28
2
Defendant objects to PSUF ¶¶ 22, 24, and 29 on the grounds that they are irrelevant, contain
hearsay, and because plaintiff can be impeached by evidence of a criminal record. ECF No. 29 at
7. These objections are overruled. Plaintiff’s statements are relevant to establishing defendant’s
awareness that plaintiff was potentially given the wrong medication, and in that context, the
statements are relevant as evidence of what plaintiff said, not that what he said was true. As to
the objection on the ground of impeachment by criminal record, this objection is not proper
because it deals with plaintiff’s credibility, which is not before the court at the summaryjudgment stage.
3
Defendant objects to PSUF ¶ 37 on the grounds that it is irrelevant, lacks foundation, calls for
an expert opinion, and because plaintiff can be impeached by evidence of a criminal record. ECF
No. 29 at 8. These objections are overruled to the extent PSUF ¶ 37 sets out plaintiff’s
observations of defendant’s conduct. Plaintiff is competent to testify as to what he saw defendant
do or not do, and defendant’s conduct is relevant to whether he was deliberately indifferent. The
objection on the ground of impeachment by criminal record is improper for the reasons already
addressed.
(continued)
6
1
The parties are once again largely in agreement as to what occurred after defendant left
2
the area. Approximately fifteen to thirty minutes after defendant gave plaintiff medication,
3
plaintiff became ill.4 DSUF ¶ 32; Response to DSUF ¶ 32. Defendant never observed plaintiff
4
displaying objective signs of ill effects due to ingesting methadone or any other medication, and
5
plaintiff did not tell defendant that he was ill due to ingesting methadone or any other medication.
6
DSUF ¶¶ 30-31; Response to DSUF ¶ 30-31.
7
After plaintiff became sick, he called an inmate porter, who contacted correctional officers
8
to transport plaintiff to the Treatment and Triage Area (TTA) for medical care. DSUF ¶¶ 33-35;
9
Response to DSUF ¶¶ 33-35. The officers responded immediately and escorted plaintiff to the
10
TTA. DSUF ¶¶ 34-35; Response to DSUF ¶¶ 34-35. Plaintiff was able to walk to the TTA under
11
his own power, and once there, a doctor and nurses provided him medical treatment, including a
12
“GI cocktail.” DSUF ¶¶ 35, 37-38; Response to DSUF ¶¶ 35, 37-38.5 Medical staff observed
13
plaintiff for fifteen to thirty minutes before releasing him back to his cell, which he was able to
14
walk back to without assistance. DSUF ¶¶ 39-40; Response to DSUF ¶¶ 39-40. No drug tests
15
were administered to show that plaintiff had taken methadone or any other medication. DSUF
16
¶ 41; Response to DSUF ¶ 41.
17
VI.
Discussion
18
A.
19
In order to state a §1983 claim for violation of the Eighth Amendment based on
Legal Standards Governing Deliberate Indifference Claims
20
inadequate medical care, plaintiff “must allege acts or omissions sufficiently harmful to evidence
21
deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
22
To prevail, plaintiff must show both that his medical needs were objectively serious, and that
23
defendant possessed a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298-99
24
(1991). The requisite state of mind for a medical claim is “deliberate indifference.” Hudson v.
25
4
26
27
28
Although defendant states that plaintiff “allegedly” became ill, he does not dispute this
allegation, and plaintiff’s claim that he became sick fifteen to thirty minutes after taking the
medication is therefore undisputed for purposes of the summary-judgment motion.
5
Plaintiff disputes the portion of DSUF ¶ 38 that address the purpose of the “GI cocktail” and
what it indicates about his condition. However, the parties are not in dispute as to the fact that
plaintiff was given a “GI cocktail.”
7
1
McMillian, 503 U.S. 1, 5 (1992) (citation omitted).
2
“A ‘serious’ medical need exists if the failure to treat a prisoner’s condition could result in
3
further significant injury or the ‘unnecessary and wanton infliction of pain.’” McGuckin v.
4
Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (quoting Estelle, 429 U.S. at 104), overruled on other
5
grounds by WMX Techs. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Examples of
6
a serious medical need include “[t]he existence of an injury that a reasonable doctor or patient
7
would find important and worthy of comment or treatment; the presence of a medical condition
8
that significantly affects an individual’s daily activities; or the existence of chronic and
9
substantial pain.” Id. at 1059-60 (citing Wood v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir.
10
1990); Hunt v. Dental Dept., 865 F.2d 198, 200-01 (9th Cir. 1989)).
11
“While poor medical treatment will at a certain point rise to the level of constitutional
12
violation, mere malpractice, or even gross negligence, does not suffice.” Wood, 900 F.2d at
13
1334. Even civil recklessness (failure to act in the face of an unjustifiably high risk of harm
14
which is so obvious that it should be known) is insufficient to establish an Eighth Amendment
15
violation. Farmer, 511 U.S. 825, 837 & n.5 (1994). It is not enough that a reasonable person
16
would have known of the risk or that a defendant should have known of the risk. Toguchi v.
17
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Rather, deliberate indifference is established only
18
where the defendant subjectively “knows of and disregards an excessive risk to inmate health and
19
safety.” Id. (citation and internal quotation marks omitted). Deliberate indifference can be
20
established “by showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible
21
medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th
22
Cir. 2006) (citation omitted).
23
i.
24
Serious Medical Need
As an initial matter, if plaintiff was not given his neighbor’s methadone, as defendant
25
contends, then he did not suffer from a serious medical need. However, though defendant argues
26
that plaintiff cannot show he was given the wrong medication (ECF No. 19 at 12-16), this fact is
27
////
28
////
8
1
sufficiently disputed.6 Accordingly, for purposes of summary judgment, the court must assume
2
that defendant gave plaintiff his neighbor’s methadone, and the question becomes whether
3
plaintiff’s ingestion of that medication created a serious medical need.
4
Defendant argues that plaintiff cannot show that he suffered from a serious medical need
5
because he has not shown that his injuries were the result of being given the wrong medication,
6
he has provided only subjective evidence that he was in pain, and when he went to the TTA he
7
was given an unknown liquid to drink and released after brief observation. ECF No. 19 at 20.
8
Plaintiff asserts that defendant is attempting to trivialize his injuries and that after he returned to
9
his cell he was in pain for the rest of the night and he now fears taking medication because he is
10
worried about being given the wrong medication and not being treated. ECF No. 23 at 20-21.
11
Although defendant states that he has reviewed plaintiff’s medical records regarding the
12
treatment plaintiff received after being given the wrong medication, it is undisputed that he was
13
not present for the treatment and he has not provided copies of the records he relied upon. ECF
14
No. 19-3 at 4, ¶ 12. Furthermore, his statements regarding the purpose and meaning of the “GI
15
cocktail” plaintiff was given are speculative in nature and therefore are without evidentiary value.
16
Id. However, in opposition to the motion, plaintiff submits medical records from the day of the
17
incident and the following day. ECF No. 23 at 36-38. Defendant objects to the records as lacking
18
foundation, being unauthenticated, and hearsay (ECF No. 29 at 13), but does not challenge the
19
authenticity of the records, and plaintiff would likely be capable of authenticating them at trial.
20
Assuming authentication, the documents would not lack foundation and are not hearsay and the
21
6
22
23
24
25
26
27
28
Plaintiff’s claims that defendant told him he had been given the wrong medication and then
offered him his correct medication (PSUF ¶¶ 26-27) are sufficient to dispute defendant assertions
that plaintiff was given the correct medication. Although defendant argues that any statement that
he gave plaintiff the wrong medication can be explained by his momentary belief that he had
given plaintiff the wrong medication (ECF No. 28 at 1-2), he would have had no need to provide
plaintiff with additional medication if plaintiff had been given his correct medication in the first
instance. Additionally, defendant’s statements regarding the monitoring and regulation of
methadone, as well as his lack of notification that there had been missing or extra doses, are
unsupported by any specific details that would objectively demonstrate plaintiff was not given the
wrong medication. DSUF ¶¶ 28-29; ECF No. 19-3 at 4, ¶ 11. Defendant’s statements regarding
the fact that plaintiff admitted the pill he took looked like mirtazapine are also meaningless
without evidence that methadone does not also come in a similar-looking pill. DSUF ¶¶ 4, 21-22.
9
1
objections are overruled. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citations
2
omitted) (“At the summary judgment stage, [the court does] not focus on the admissibility of the
3
evidence’s form. [It] instead focus[es] on the admissibility of its contents.”).
4
The medical records show that plaintiff was taken to the TTA, where it was noted that he
5
supposedly was accidentally given another inmate’s 10 mg methadone dose. ECF No. 23 at 36.
6
Plaintiff was noted to be stable, but very anxious and worried. Id. The notes further state that
7
“[p]oison unit also called, and asked for side effect of methadone, and what they recommended if
8
he is above the recommended dosage, treat as overdose and monitor the inmate.” Id. The doctor
9
ordered that plaintiff should be reassured, given a “G.I. cocktail,” and sent back to his cell once
10
stable. Id. Plaintiff’s records were checked and showed no allergies to any medications,
11
including methadone. Id. The following day, plaintiff was seen by another doctor who noted as
12
follows:
13
Nausea and vomiting after taking wrong medication. This may be
the side effect of methadone, but with that dose it is not supposed to
cause any respiratory distress. I feel that the patient’s symptoms are
mostly caused by his anxiety. The patient is assured. I told the
patient that even though he took the wrong medication, that
medication is quite benign with that dose. Apparently, the patient is
still worried about heart condition and lung condition and for that
reason, I asked the nurse to do an EKG on him. The EKG showed
normal sinus rhythm. He had bradycardia at 48, which he had before,
and there was no change of his QRS or T wave and his QT or
corrected QT are in normal range at 418 and 373 respectively. I told
the patient to notify Medical if his nausea and vomiting continues for
another day or 2. I expect him a [sic] full recovery in a day.
14
15
16
17
18
19
20
21
Id. at 38.
Based on the records plaintiff has submitted, it does not appear that he can prove his
22
ingestion of methadone constituted or caused a serious medical need. However, even if the court
23
assumes that plaintiff’s ingestion of methadone created a serious medical need, defendant should
24
still be granted summary judgment because plaintiff cannot show that defendant deliberately
25
disregarded that need.
26
ii.
Defendant’s Response to Plaintiff’s Medical Need
27
Assuming that defendant gave plaintiff the wrong medication and was aware of that fact,
28
plaintiff must prove in order to prevail at trial that defendant knew that his error posed a serious
10
1
risk of harm to plaintiff and then disregarded that risk. Defendant argues that plaintiff cannot
2
prove that defendant had the requisite state of mind because he did not see and was not told about
3
plaintiff’s vomiting, nausea, and pain, and therefore did not know that plaintiff had a serious
4
medical need. ECF No. 19 at 17-20. In response, plaintiff argues that defendant had a duty to
5
abate the risk of harm created by giving him the wrong medication, but instead simply told him
6
that he would be fine and was “acting like a baby.” ECF No. 23 at 16-20.
7
Plaintiff’s arguments that defendant had a duty to take action or should have known
8
generally about the risks of medication errors are essentially arguments that defendant was
9
negligent, and negligence does not establish deliberate indifference. Furthermore, there is no
10
evidence that defendant knew plaintiff taking a 10 mg dose of methadone would pose a serious
11
risk to his health. Taking plaintiff’s version of facts as true, defendant told plaintiff that he would
12
be fine and that he was “acting like a baby.” PSUF ¶ 30. Though certainly not professional, this
13
response indicates a subjective belief that plaintiff was not in any danger from taking his
14
neighbor’s medication. Moreover, since defendant knew plaintiff had taken his neighbor’s
15
medication, he would have known that plaintiff took 10 mg of methadone, and the physicians’
16
notes provided by plaintiff show that methadone does not pose a significant risk of serious harm
17
at that dose. Additionally, while plaintiff argues that nausea and vomiting are known side effects
18
of methadone (PSUF ¶ 50), even if defendant were aware that the administration of methadone
19
could cause nausea and vomiting at the dose plaintiff received, neither of those conditions,
20
without more, constitutes a serious medical need. Dean v. City of Fresno, 564 F. Supp. 2d 798,
21
813 (E.D. Cal. 2008) (“Vomiting in and of itself is not a serious medical condition.”).
22
23
24
25
Accordingly, plaintiff cannot show that defendant knew that plaintiff taking his neighbor’s
methadone constituted a serious risk to plaintiff’s health.
iii.
Harm Caused by the Indifference
Even if the court assumes that defendant knew there was a risk to plaintiff’s health from
26
taking methadone and he failed to provide plaintiff with treatment, summary judgment is still
27
appropriate because plaintiff cannot show that the delay in treatment caused him additional
28
injury. Shapley v. Nev. Bd. of State Prison Comm’rs., 766 F.2d 404, 407 (9th Cir. 1985) (delay
11
1
of surgery did not constitute deliberate indifference unless delay was harmful); Hallett v. Morgan,
2
296 F.3d 732, 746 (9th Cir. 2002) (delaying treatment does not establish deliberate indifference
3
unless plaintiff proves delay led to further injury); Wood v. Housewright, 900 F.2d 1332, 1335
4
(9th Cir. 1990) (delay in treatment does not constitute Eighth Amendment violation unless it
5
causes “substantial harm”).
6
After plaintiff vomited, correctional staff responded immediately and took him to the TTA
7
where he was given a “GI cocktail” and monitored for approximately fifteen to thirty minutes
8
before being released to his cell. DSUF ¶¶ 32-35, 38-39; Response to DSUF ¶¶ 32-35, 38-39.
9
Plaintiff further asserts that after returning to his cell, he went to bed and his cellmate observed
10
him “moan[ing] as if he was in pain throughout the night.” PSUF ¶¶ 54, 56. The facts show that
11
plaintiff was taken to the TTA and he received treatment immediately after becoming sick, and
12
that even after receiving treatment he continued to feel sick and experience stomach pain. The
13
fact that nausea and pain continued for some time after treatment compels the inference that
14
earlier intervention would not have made a significant difference. Plaintiff has presented no
15
evidence to support a finding that any cognizable harm was caused by the delay itself.
16
Accordingly, plaintiff cannot show that defendant’s failure to act caused him harm.
17
B.
18
Subject to the conditions set forth in 28 U.S.C. § 1367(c), district courts may decline to
Professional Negligence
19
exercise supplemental jurisdiction over state law claims. Acri v. Varian Assocs., Inc., 114 F.3d
20
999, 1000 (9th Cir. 1997) (en banc). The court’s decision whether to exercise supplemental
21
jurisdiction should be informed by “values of economy, convenience, fairness, and comity.” Id.
22
at 1001 (citations and internal quotation marks omitted). Further, primary responsibility for
23
developing and applying state law rests with the state courts. Therefore, when federal claims are
24
eliminated before trial, district courts should usually decline to exercise supplemental jurisdiction.
25
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n.7 (1988) (citation omitted); Gini v. Las
26
Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994) (“‘[I]n the usual case in which
27
federal-law claims are eliminated before trial, the balance of factors . . . will point toward
28
declining to exercise jurisdiction over the remaining state law claims.’” (emphasis and alteration
12
1
in original) (quoting Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991))). As outlined
2
above, it is recommended that defendants’ motion for summary judgment be granted as to the
3
federal-law claim. Plaintiff has not identified any reason why his case is not a usual case and the
4
undersigned therefore recommends that the court decline to exercise supplemental jurisdiction
5
over plaintiff’s state law claims.
6
7
VII.
Plain Language Summary of this Order for a Pro Se Litigant
It is being recommended that defendant’s motion for summary judgment be granted
8
because you did not show that defendant knew there was a serious risk to your health from you
9
taking methadone, or that the delay in treatment caused you more injury. Because it is being
10
recommended that your Eighth Amendment claim be dismissed, the undersigned is also
11
recommending that the court decline to hear your state law negligence claim.
12
VIII.
Conclusion
13
Accordingly, IT IS HEREBY RECOMMENDED that:
14
1. Defendants’ motions for summary judgment (ECF No. 19) be GRANTED and the
15
claims against defendant Owens be dismissed.
16
2. Judgement be entered for defendant.
17
These findings and recommendations are submitted to the United States District Judge
18
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days
19
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 served and filed within fourteen days after service of the objections. The
23
parties are advised that failure to file objections within the specified time may waive the right to
24
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
25
DATED: May 28, 2019
26
27
28
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?