Ashker v. Alameida et al

Filing 568

ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 551 MOTION FOR RECONSIDERATION. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 1/28/2013)

Download PDF
1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 TODD A. ASHKER, 7 8 9 Plaintiff, United States District Court For the Northern District of California ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION v. MICHAEL C. SAYRE, et al., 10 11 No. C 05-3759 CW Defendants. ________________________________/ 12 13 Plaintiff Todd Ashker moves for reconsideration of the 14 Court’s April 9, 2012 Order Regarding Defendant’s Progress Reports 15 and Terminating Order for Physical Therapy. 16 Defendant Martin Hoshino1 opposes the motion. 17 decided on the papers. 18 by the parties and the entire record in this case, the Court 19 DENIES Plaintiff’s motion. 20 21 Docket No. 550. The motion was Having considered all of the papers filed BACKGROUND On February 4, 2010, the Court entered an Order for Specific 22 Performance in which it ordered Defendant to submit a report every 23 three weeks indicating the status of his performance of the 2002 24 Settlement Agreement between the CDCR and Plaintiff. The Court 25 26 27 28 1 Pursuant to Federal Rule of Civil Procedure 25(d), the Court SUBSTITUTES Secretary Martin Hosino in place of former Secretary of the California Department of Corrections and Rehabilitation Matthew Cate. 1 also ordered among other things that CDCR reinstate twice weekly 2 physical therapy sessions to continue until Plaintiff’s “medical 3 needs contraindicate the therapy, that is, until a physical 4 therapist not employed by the CDCR certifies in writing to the 5 Court that the therapy is no longer beneficial to Plaintiff.” 6 Defendant began submitting timely reports of his progress in 7 complying with the Court’s Order for Specific Performance. 8 9 In one of his progress reports, Defendant requested that the Court terminate the part of its order requiring that Plaintiff United States District Court For the Northern District of California 10 receive physical therapy twice a week. 11 declaration of Ryan Farr, an independent contractor who, since 12 2009, had been contracted with the CDCR and, since August 2009, 13 had been Plaintiff’s physical therapist. 14 physical therapy Plaintiff was receiving was maintaining rather 15 than improving his condition. 16 do not perform maintenance programs, he would not advise a doctor 17 to prescribe formal physical therapy based on Plaintiff’s 18 condition at that time. 19 2010 order, Mr. Farr stated that “if the term ‘contraindicate’ is 20 defined as ‘no longer beneficial,’ then the physical therapy is 21 contraindicated because it no longer provides a benefit to Mr. 22 Ashker, in that it is not improving Mr. Ashker’s condition.” 23 Farr further stated that if “contraindicate” is defined to mean 24 “harmful,” the court-ordered physical therapy would never end 25 because the treatment Plaintiff receives would not be harmful to 26 him. 27 most of the physical therapy exercises on his own, which he was 28 doing at that time. Defendant submitted the Mr. Farr stated that the Because physical therapists usually With respect to the Court’s February 4, Mr. Moreover, Mr. Farr noted that Plaintiff could easily perform 2 1 In its April 9, 2012 order, the Court noted that Plaintiff 2 had received copies of Defendant’s progress reports and had not 3 filed any objection to Defendant’s request to end the physical 4 therapy sessions. 5 Plaintiff could continue his exercises on his own, and that the 6 sessions were maintaining rather than improving his condition, and 7 granted Defendant’s request to vacate the portion of the order 8 requiring that Plaintiff receive physical therapy. The Court relied on Mr. Farr’s opinion that On April 30, 2012, Plaintiff filed a motion for leave to file 10 United States District Court For the Northern District of California 9 a motion for reconsideration of the Court’s April 9 order, stating 11 among other things that he did not believe that he needed to 12 respond to a request set out in Defendant’s progress report. 13 Court deemed Plaintiff’s motion to be his motion for 14 reconsideration and set deadlines for Defendant to file any 15 opposition and Plaintiff to file any reply. 16 the motion and Plaintiff has filed a reply. 17 18 19 20 The Defendant has opposed DISCUSSION2 I. Physical Therapist Ryan Farr The Court’s February 4, 2010 order required that the certification that Plaintiff’s medical needs contraindicate 21 22 23 24 25 26 27 28 2 Defendant asserts that Plaintiff’s motion fails on procedural grounds, because he cannot satisfy Local Rule 7-9(b)’s requirement that “a material difference in fact or law exists from that which was presented to the Court before entry” of the order at issue; “emergence of new material facts or a chance of law;” or “[a] manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court.” Because the Court denies Plaintiff’s motion for reconsideration it need not decide whether Local Rule 7-9(b) applies in this case, where pro se Plaintiff did not believe he needed to respond to a request set out in Defendant’s progress report. 3 1 physical therapy be made by “a physical therapist not employed by 2 the CDCR.” 3 independent contractor, and [has] been contracted with the 4 California Department of Corrections and Rehabilitation since 5 August, 2009.” 6 Mr. Farr’s certification is not sufficient to satisfy the Court’s 7 order, because he is a “contract employee” of CDCR and therefore 8 is not neutral. 9 According to Mr. Farr’s declaration, he is “an Farr Declaration at ¶ 1. Plaintiff argues that Plaintiff cites several cases related to the question of United States District Court For the Northern District of California 10 whether medical personnel contracted by a government entity are 11 state actors for purposes of section 1983 liability. 12 West v. Atkins, 487 U.S. 42, 54-57 (1988). 13 to sue Mr. Farr pursuant to section 1983 is not at issue. 14 relevant question is whether Mr. Farr is “employed by the CDCR.” 15 Plaintiff has presented no evidence to contradict Mr. Farr’s 16 declaration that he is an independent contractor contracted by 17 CDCR. 18 II. 19 See, e.g., However, the ability The Whether the Physical Therapy is “Contraindicated” Plaintiff next argues that, because the physical therapy 20 continues to be “beneficial,” it was improper to discontinue the 21 sessions. 22 Farr’s declaration which states, “The whirlpool provides increased 23 circulation and has been helpful in temporarily decreasing Mr. 24 Ashker’s discomfort.” 25 constitutes an admission by Mr. Farr that Plaintiff continues to 26 benefit from the physical therapy sessions. 27 qualified his statement regarding the whirlpool by stating that In particular, Plaintiff cites the portion of Mr. Farr Dec. ¶ 5. 28 4 Plaintiff asserts that this However, Mr. Farr 1 “modalities such as this are temporary in benefit and are not 2 customarily used at this stage of treatment.” 3 further opined that the whirlpool “may temporarily ‘feel good,’ 4 but it provides no long-term benefit.” Id. Mr. Farr Farr Dec. ¶ 9. 5 Moreover, Plaintiff bases his argument that physical therapy 6 should continue so long as he receives any benefit on the Court’s 7 February 4, 2010 order which provided that physical therapy “shall 8 continue until Plaintiff’s medical needs contraindicate the 9 therapy, that is, until a physical therapist not employed by the United States District Court For the Northern District of California 10 CDCR certifies in writing to the Court that the therapy is no 11 longer beneficial to Plaintiff.” 12 provision could be construed to require that physical therapy be 13 continued so long as it provides any benefit to Plaintiff. 14 However, when read in context of the provision of the Settlement 15 Agreement it was interpreting, it is more limited. 16 language from the Court’s order was based on the following portion 17 of the 2002 Settlement Agreement: 18 19 20 While read in isolation, this The quoted The Releasees agree to reinstate Releasor’s receipt of the physical therapy he was previously receiving to rehabilitate his arm. The physical therapy shall continue until a change in Releasor’s medical needs contraindicate the therapy. 21 2002 Settlement Agreement, ¶ 4. 22 performance, the Court cannot order any party to do more than was 23 agreed to in the initial contract, in this case the 2002 24 Settlement Agreement. 25 When ordering specific Here, the Settlement Agreement provides that the purpose of 26 the physical therapy is to “rehabilitate” Plaintiff’s arm. 27 According to Mr. Farr, Plaintiff’s physical therapy “acts as a 28 5 1 maintenance program to maintain his present level of 2 functionality.” 3 therapy is no longer rehabilitating Plaintiff’s arm. 4 evidence Plaintiff submits supports a finding that the physical 5 therapy provides temporary pain relief rather than rehabilitation. 6 For example, Plaintiff declares that “the hot whirlpool sessions . 7 . . [help] with the movement and pain for several hours, or longer 8 (the rest of the day) depending on activity (use) afterwards” and 9 describes the physical therapy as part of his “arm maintenance- United States District Court For the Northern District of California 10 Farr Dec. ¶ 5. pain management regimen.” In other words, the physical Indeed, the Ashker Dec. ¶¶ 7,8. 11 Again, the Court credits Mr. Farr’s opinion that, at this 12 point, physical therapy is acting as a maintenance program instead 13 of improving Plaintiff’s medical condition and that Plaintiff, on 14 his own, can and does perform most of the exercises to maintain 15 his level of functioning. 16 whirlpool treatments “has effected [him] mentally and physically.” 17 Ashker Dec. ¶ 8. 18 to “cut back on [his] in cell exercises due to increase in pain 19 brought on by loss of whirlpool, loss of writing asst., cuts in 20 pain medication.” 21 establish that the termination of the whirlpool sessions will lead 22 to deterioration in the condition of Plaintiff’s arm, or that the 23 whirlpool sessions are a beneficial part of the rehabilitation of 24 his arm. 25 26 27 Plaintiff declares that stopping the Specifically, Plaintiff asserts that he has had Id. However, this is not sufficient to CONCLUSION For the reasons stated above, the Court reaffirms its order granting Defendant’s request to vacate the part of its Order 28 6 1 requiring that Plaintiff receive physical therapy. 2 motion for reconsideration is DENIED. Plaintiff’s Docket No. 551. 3 4 IT IS SO ORDERED. 5 6 7 Dated: 1/28/2013 CLAUDIA WILKEN United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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?