Mendoza v. Spadaro et al.

Filing 54

ORDER signed by District Judge Kimberly J. Mueller on 09/30/2018. The findings and recommendations filed June 6, 2018, are ADOPTED to the extent consistent with this order; Defendant Spadaros motion for summary judgment (ECF No. 42 ) is GRANTED; and this case is CLOSED.(Andrews, P)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TORBIO MENDOZA,

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Plaintiff,

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No. 2:16-cv-0855 KJM CKD P

v.

ORDER

SPADARO, et al.,

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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 as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 6, 2018, the magistrate judge filed findings and recommendations, which

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

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findings and recommendations were to be filed within fourteen days. Neither party has filed

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objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United

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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are

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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.

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1983). Having reviewed the file, the court finds the findings and recommendations to be

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supported by the record. For the reasons explained below, the findings and recommendations will

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be adopted.1

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This action is proceeding on plaintiff’s claim that defendant Correctional Officer

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Spadaro acted with deliberate indifference to plaintiff’s serious medical needs by failing to

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summon medical staff to treat an emergency medical episode suffered by plaintiff on April 13,

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2015. ECF No. 52 at 1. Plaintiff’s factual allegations, contained in his verified complaint,

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defendant’s evidence in support of the motion for summary judgment, and certain testimony from

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plaintiff’s deposition, are set forth in the findings and recommendations. See ECF No. 52 at 4-8.

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The following facts are undisputed:

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1. On April 9, 2015, plaintiff had symptoms of abdominal pain, dizziness, and
nausea. ECF No. 1 at 8.

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2. On April 12, 2015, plaintiff received a shot of Phenergan for nausea.
Defendants’ Statement of Undisputed Facts (DUF), ECF No. 42-3 at ¶ 8.

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3. On April 13, 2015 at 11:00 a.m. defendant directed plaintiff “to a medical

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evaluation for complaints of nausea and dizziness.” Id. at ¶ 6. Plaintiff had normal vital signs.

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Id. at ¶ 7. Plaintiff “was advised to return to medical for further care if his symptoms worsened.”

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Id. at ¶ 9.

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4. Plaintiff talked with defendant after his appointment on April 13, 2015, and

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defendant told him to “go ‘man down’ if he needed further care.” Id. at ¶ 10. Shortly after this

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conversation, defendant Spadaro contacted the nurse who had seen plaintiff that morning. Id. at ¶

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11. The nurse told defendant “that there was nothing objectively wrong with Plaintiff, but that he

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should treat Plaintiff’s condition as dehydration and should send Plaintiff back to medical if his

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symptoms deteriorated.” Id. at ¶ 12.

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5. On April 14, 2015, plaintiff was transferred to an outside medical facility for

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emergency treatment, id. at ¶ 16, after plaintiff’s liver function AST and ALT levels were found

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to be extremely elevated. ECF No. 1 at 10 & Ex. C.

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The court corrects a typographical error at 4:5 of the findings and recommendations to set forth
the full citation Hallett v. Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002).
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In support of the motion for summary judgment, defendant presents, inter alia, his

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own declaration in which he avers that his shift ended at 14:00 hours on April 13, 2015, and that

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plaintiff did not seek any additional treatment after defendant spoke with the nurse and before

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defendant’s shift ended. Spadaro Decl., ECF No. 42-5 at ¶¶ 8-9. In opposition to the motion,

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plaintiff asserts that on April 13, 2015 he “had another emergency experience in which he

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informed Officer Spadaro to please summons medical staff” and that, rather than calling medical

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staff, defendant Spadaro “mislead plaintiff into believing a staff assistance [sic] was on the way”

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and did not do anything more to help plaintiff. ECF No. 46 at 3. Plaintiff’s opposition is not

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signed under penalty of perjury, and the mere assertions in the opposition are not evidence. See

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Estrella v. Brandt, 682 F.2d 814, 819-20 (9th Cir. 1982); cf. Schroeder v. McDonald, 55 F.3d

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454, 460 & n.10 (9th Cir. 1995) (describing when complaint signed under penalty of perjury may

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serve as affidavit in opposition to summary judgment). Plaintiff provides no evidence to support

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this assertion. Moreover, there is no evidence when this other alleged “emergency experience”

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occurred relative to when plaintiff was seen by the nurse at 11:00 a.m., whether following his

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return from that medical visit, or prior to the end of defendant Spadaro’s shift.

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Thus, the undisputed evidence of record shows defendant Spadaro did send

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plaintiff to medical care on the morning of April 13, 2015, and plaintiff has failed to present

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evidence sufficient to give rise to a material issue of fact that defendant Spadaro was deliberately

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indifferent to plaintiff’s need for additional medical care between the time plaintiff returned to his

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unit on April 13, 2015 and the time defendant Spadaro’s shift ended that day. For this reason,

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defendant Spadaro is entitled to summary judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 6, 2018, are adopted to the extent

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consistent with this order.

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2. Defendant Spadaro’s motion for summary judgment (ECF No. 42) is granted.

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3. This case is closed.

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DATED: September 30, 2018.

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UNITED STATES DISTRICT JUDGE