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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TODD A. ASHKER,

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Plaintiff,

United States District Court
For the Northern District of California

ORDER DENYING
PLAINTIFF’S MOTION
FOR
RECONSIDERATION

v.
MICHAEL C. SAYRE, et al.,

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No. C 05-3759 CW

Defendants.
________________________________/

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Plaintiff Todd Ashker moves for reconsideration of the

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Court’s April 9, 2012 Order Regarding Defendant’s Progress Reports

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and Terminating Order for Physical Therapy.

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Defendant Martin Hoshino1 opposes the motion.

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decided on the papers.

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by the parties and the entire record in this case, the Court

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DENIES Plaintiff’s motion.

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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

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Performance in which it ordered Defendant to submit a report every

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three weeks indicating the status of his performance of the 2002

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Settlement Agreement between the CDCR and Plaintiff.

The Court

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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.

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also ordered among other things that CDCR reinstate twice weekly

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physical therapy sessions to continue until Plaintiff’s “medical

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needs contraindicate the therapy, that is, until a physical

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therapist not employed by the CDCR certifies in writing to the

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Court that the therapy is no longer beneficial to Plaintiff.”

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Defendant began submitting timely reports of his progress in

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complying with the Court’s Order for Specific Performance.

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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

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receive physical therapy twice a week.

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declaration of Ryan Farr, an independent contractor who, since

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2009, had been contracted with the CDCR and, since August 2009,

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had been Plaintiff’s physical therapist.

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physical therapy Plaintiff was receiving was maintaining rather

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than improving his condition.

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do not perform maintenance programs, he would not advise a doctor

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to prescribe formal physical therapy based on Plaintiff’s

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condition at that time.

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2010 order, Mr. Farr stated that “if the term ‘contraindicate’ is

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defined as ‘no longer beneficial,’ then the physical therapy is

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contraindicated because it no longer provides a benefit to Mr.

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Ashker, in that it is not improving Mr. Ashker’s condition.”

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Farr further stated that if “contraindicate” is defined to mean

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“harmful,” the court-ordered physical therapy would never end

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because the treatment Plaintiff receives would not be harmful to

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him.

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most of the physical therapy exercises on his own, which he was

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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

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In its April 9, 2012 order, the Court noted that Plaintiff

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had received copies of Defendant’s progress reports and had not

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filed any objection to Defendant’s request to end the physical

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therapy sessions.

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Plaintiff could continue his exercises on his own, and that the

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sessions were maintaining rather than improving his condition, and

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granted Defendant’s request to vacate the portion of the order

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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

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United States District Court
For the Northern District of California

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a motion for reconsideration of the Court’s April 9 order, stating

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among other things that he did not believe that he needed to

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respond to a request set out in Defendant’s progress report.

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Court deemed Plaintiff’s motion to be his motion for

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reconsideration and set deadlines for Defendant to file any

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opposition and Plaintiff to file any reply.

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the motion and Plaintiff has filed a reply.

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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

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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.
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physical therapy be made by “a physical therapist not employed by

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the CDCR.”

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independent contractor, and [has] been contracted with the

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California Department of Corrections and Rehabilitation since

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August, 2009.”

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Mr. Farr’s certification is not sufficient to satisfy the Court’s

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order, because he is a “contract employee” of CDCR and therefore

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is not neutral.

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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

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whether medical personnel contracted by a government entity are

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state actors for purposes of section 1983 liability.

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West v. Atkins, 487 U.S. 42, 54-57 (1988).

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to sue Mr. Farr pursuant to section 1983 is not at issue.

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relevant question is whether Mr. Farr is “employed by the CDCR.”

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Plaintiff has presented no evidence to contradict Mr. Farr’s

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declaration that he is an independent contractor contracted by

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CDCR.

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II.

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See, e.g.,

However, the ability
The

Whether the Physical Therapy is “Contraindicated”
Plaintiff next argues that, because the physical therapy

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continues to be “beneficial,” it was improper to discontinue the

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sessions.

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Farr’s declaration which states, “The whirlpool provides increased

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circulation and has been helpful in temporarily decreasing Mr.

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Ashker’s discomfort.”

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constitutes an admission by Mr. Farr that Plaintiff continues to

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benefit from the physical therapy sessions.

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qualified his statement regarding the whirlpool by stating that

In particular, Plaintiff cites the portion of Mr.

Farr Dec. ¶ 5.

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Plaintiff asserts that this

However, Mr. Farr

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“modalities such as this are temporary in benefit and are not

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customarily used at this stage of treatment.”

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further opined that the whirlpool “may temporarily ‘feel good,’

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but it provides no long-term benefit.”

Id.

Mr. Farr

Farr Dec. ¶ 9.

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Moreover, Plaintiff bases his argument that physical therapy

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should continue so long as he receives any benefit on the Court’s

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February 4, 2010 order which provided that physical therapy “shall

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continue until Plaintiff’s medical needs contraindicate the

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therapy, that is, until a physical therapist not employed by the

United States District Court
For the Northern District of California

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CDCR certifies in writing to the Court that the therapy is no

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longer beneficial to Plaintiff.”

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provision could be construed to require that physical therapy be

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continued so long as it provides any benefit to Plaintiff.

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However, when read in context of the provision of the Settlement

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Agreement it was interpreting, it is more limited.

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language from the Court’s order was based on the following portion

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of the 2002 Settlement Agreement:

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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.

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2002 Settlement Agreement, ¶ 4.

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performance, the Court cannot order any party to do more than was

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agreed to in the initial contract, in this case the 2002

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Settlement Agreement.

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When ordering specific

Here, the Settlement Agreement provides that the purpose of

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the physical therapy is to “rehabilitate” Plaintiff’s arm.

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According to Mr. Farr, Plaintiff’s physical therapy “acts as a

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maintenance program to maintain his present level of

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functionality.”

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therapy is no longer rehabilitating Plaintiff’s arm.

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evidence Plaintiff submits supports a finding that the physical

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therapy provides temporary pain relief rather than rehabilitation.

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For example, Plaintiff declares that “the hot whirlpool sessions .

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. . [help] with the movement and pain for several hours, or longer

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(the rest of the day) depending on activity (use) afterwards” and

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describes the physical therapy as part of his “arm maintenance-

United States District Court
For the Northern District of California

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Farr Dec. ¶ 5.

pain management regimen.”

In other words, the physical
Indeed, the

Ashker Dec. ¶¶ 7,8.

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Again, the Court credits Mr. Farr’s opinion that, at this

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point, physical therapy is acting as a maintenance program instead

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of improving Plaintiff’s medical condition and that Plaintiff, on

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his own, can and does perform most of the exercises to maintain

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his level of functioning.

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whirlpool treatments “has effected [him] mentally and physically.”

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Ashker Dec. ¶ 8.

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to “cut back on [his] in cell exercises due to increase in pain

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brought on by loss of whirlpool, loss of writing asst., cuts in

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pain medication.”

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establish that the termination of the whirlpool sessions will lead

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to deterioration in the condition of Plaintiff’s arm, or that the

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whirlpool sessions are a beneficial part of the rehabilitation of

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his arm.

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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

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requiring that Plaintiff receive physical therapy.

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motion for reconsideration is DENIED.

Plaintiff’s

Docket No. 551.

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IT IS SO ORDERED.

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Dated: 1/28/2013
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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