Gonzalez v. Ahmed et al

Filing 117

Order by Hon. Lucy H. Koh granting in part and denying in part 108 Motion for Reconsideration.(lhklc1, COURT STAFF) (Filed on 6/24/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BRENT LUIS GONZALEZ,

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Plaintiff,
v.

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Z. AHMED,
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Defendant.
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No. C 10-5654 LHK (PR)
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR LEAVE TO FILE A
RENEWED MOTION FOR
RECONSIDERATION; ORDERING
DEFENDANTS TO RESPOND
(Docket No. 108.)

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Plaintiff, a state prisoner proceeding pro se, filed a second amended complaint (“SAC”)

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under 42 U.S.C. § 1983, arguing that Defendants retaliated against him, and were deliberately

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indifferent to his serious medical needs, in violation of the First and Eighth Amendments. On

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November 14, 2011, Defendants filed a motion for summary judgment. On September 11, 2012,

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the Court granted in part and denied in part the motion for summary judgment, and referred the

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matter to Magistrate Judge Vadas for settlement proceedings. On December 5, 2012, Judge

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Vadas reported that the case did not settle. On February 6, 2013, the Court appointed pro bono

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counsel for Plaintiff. On April 8, 2013, Plaintiff filed a motion for leave to file a renewed

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motion for reconsideration of the Court’s order on summary judgment.1 Upon consideration of

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Plaintiff’s requests for judicial notice are GRANTED.

Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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the pleadings, Plaintiff’s motion for leave to file a renewed motion for reconsideration is

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GRANTED in part and DENIED in part.

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BACKGROUND
Plaintiff’s SAC alleged that, in July 2008, he experienced severe abdominal pain in his

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lower right abdominal region and groin area, and requested medical help. Plaintiff was seen by

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Defendant Dr. Ahmed (“Dr. Ahmed”), Plaintiff’s primary care physician at Central Training

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Facility in Soledad, California. At the end of July 2008, Plaintiff was taken to the emergency

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room at Natividad Medical Center, where a Natividad Medical Center doctor diagnosed Plaintiff

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with a ruptured appendix, an abscess, and a urinary tract infection. Plaintiff was discharged from

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Natividad Medical Center on July 31, 2008, with instructions to return to Natividad Medical

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Center within 6-8 weeks for an appendectomy once the infection and abscess were resolved. On

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September 30, 2008, Dr. Ahmed saw Plaintiff, and informed Plaintiff that the abscess had

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resolved. Despite Plaintiff’s being instructed at the end of July 2008 to have an appendectomy

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within 6-8 weeks, Plaintiff did not receive the surgery until December 11, 2008. During those

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two and a half months between September 30, 2008, and December 11, 2008, Plaintiff suffered

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excruciating pain, and was given no medical treatment. Plaintiff also alleged that Defendants

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Dr. Sepulveda (“Dr. Sepulveda”) and Dr. Chudy (“Dr. Chudy”) were liable as Dr. Ahmed’s

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supervisors for failing to correct Dr. Ahmed’s mistakes or removing Dr. Ahmed as Plaintiff’s

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treating physician.

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Viewing the facts in the light most favorable to Plaintiff, the Court found that Dr.

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Ahmed’s responses to Plaintiff’s medical requests in July 2008 could be inferred to be

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purposeful failures to act and that Plaintiff was harmed by that failure. The Court granted

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summary judgment in favor Dr. Sepulveda because he was not personally involved in Plaintiff’s

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treatment, was not aware of Plaintiff’s dissatisfaction with Dr. Ahmed, and did not fail to prevent

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any substantial risk of serious harm to Plaintiff. The Court also granted summary judgment in

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favor of Dr. Chudy because he was similarly situated to Dr. Sepulveda. Finally, the Court

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granted summary judgment in favor of all Defendants as to Plaintiff’s claim that Defendants

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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exhibited deliberate indifference by delaying Plaintiff surgery for two and a half months – from

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September 30, 2008, through December 11, 2008 – because there was an absence of evidence

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that Defendants’ action or lack of action was the proximate cause of any alleged delay.

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ANALYSIS
I.

Standard of Review

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“Reconsideration is appropriate if the district court (1) is presented with newly

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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or

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(3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993). In the Northern District of California, no motion for

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reconsideration may be brought without leave of court. See Civil L.R. 7-9(a). Under Civil Local

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Rule 7-9, the moving party must specifically show: (1) that at the time of the motion for leave, a

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material difference in fact or law exists from that which was presented to the court before entry

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of the interlocutory order for which the reconsideration is sought, and that in the exercise of

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reasonable diligence the party applying for reconsideration did not know such fact or law at the

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time of the interlocutory order; or (2) the emergence of new material facts or a change of law

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occurring after the time of such order; or (3) a manifest failure by the court to consider material

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facts which were presented to the court before such interlocutory order. See Civil L.R. 7-9(b).

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II.

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Plaintiff’s motion
Plaintiff asks the Court to reconsider: (1) the entry of summary judgment in favor of

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unserved Dr. Chudy; (2) the entry of summary judgment in favor of Dr. Chudy and Dr.

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Sepulveda under supervisory liability; (3) the entry of summary judgment in favor of Dr. Chudy

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and Dr. Sepulveda because they were deliberately indifferent to Plaintiff’s medical needs after

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learning that Dr. Ahmed refused Plaintiff medical care; and (4) the entry of summary judgment

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in favor of all Defendants regarding the delay in Plaintiff’s surgery. The Court addresses each

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issue in turn.

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A.

Unserved Dr. Chudy

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Plaintiff argues that the Court improperly granted summary judgment in favor of

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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unserved Dr. Chudy without giving Plaintiff notice and a reasonable time to respond. See Fed.

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R. Civ. P. 56(f). “A District Court may properly on its own motion dismiss an action as to

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defendants who have not moved to dismiss where such defendants are in a position similar to

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that of moving defendants or where claims against such defendants are integrally related.”

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Silverton v. Dep’t. of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). “Such a dismissal may be

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made without notice where the [plaintiff] cannot possibly win relief.” Omar v. Sea-Land Serv.,

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Inc., 813 F.2d 986, 991 (9th Cir. 1987). The Court’s authority in this regard includes the sua

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sponte grant of summary judgment as to Defendants who have not been served. Columbia Steel

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Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802-03 (9th Cir. 1995) (affirming summary

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judgment for nonappearing defendant where plaintiffs, in response to summary judgment motion

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filed by appearing defendant, had “a full and fair opportunity to brief and present evidence” as to

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claims against nonappearing defendant, which were the same as those against appearing

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defendants).

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Plaintiff argues that the Court should not have granted summary judgment in favor of

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unserved Dr. Chudy without giving proper notice and an opportunity to respond to Plaintiff. See

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Fed. R. Civ. P. 56(f). Federal Rule of Civil Procedure 56(f) was amended in 2010 to require that

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a district court may grant summary judgment for a nonmoving party only “after giving notice and

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a reasonable time to respond.” However, the cases to which Plaintiff cites in support of his

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argument are inapposite because none of those cases discusses a nonappearing Defendant when

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the same issues control resolution of the claims presented against both appearing and

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nonappearing Defendants within the motion for summary judgment. Cf. Columbia Steel

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Fabricators, 44 F.3d at 802-03 (applying principles of res judicata to grant summary judgment in

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favor of nonappearing defendant).

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Here, Dr. Chudy is similarly situated to Dr. Sepulveda, insofar as they both were alleged

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to have been responsible for failing to prevent Plaintiff from being harmed by Dr. Ahmed via

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respondeat superior. Plaintiff had claimed that Dr. Sepulveda and Dr. Chudy failed to prevent

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substantial risk of serious harm to Plaintiff by not removing Dr. Ahmed as Plaintiff’s physician

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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after becoming aware of Plaintiff’s grievance at the second level of review, and failing to ensure

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that Plaintiff received an appendectomy in a timely manner. (SAC at ¶¶ E, F, 30, 32.) The

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evidence showed the following: Dr. Sepulveda conducted interviews and investigated Plaintiff’s

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claim for the administrative appeal (Pl. Opp., Ex. N; Decl. Sepulveda at ¶¶ 2-3); Dr. Sepulveda

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concluded that Dr. Ahmed did not violate prison policy with respect to Dr. Ahmed’s treatment of

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Plaintiff (Decl. Sepulveda at ¶ 5); and Dr. Chudy reviewed, approved, and signed the appeal

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response (Pl. Opp., Ex. N; Pl. Decl. at ¶ 50).

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The same facts presented in Plaintiff’s SAC and opposition support judgment for both

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Dr. Sepulveda and Dr. Chudy. Plaintiff had a full and fair opportunity to brief and present

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evidence on the issues raised by Dr. Sepulveda, which were the same issues controlling Dr.

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Chudy’s liability. Arguably, Dr. Chudy is even more removed from liability than Dr. Sepulveda

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because Plaintiff never personally communicated with Dr. Chudy. Moreover, Dr. Chudy’s

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approval of Dr. Sepulveda’s findings occurred on October 21, 2008, when Dr. Chudy was “made

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aware of” Plaintiff’s concerns. (SAC at ¶ 32.) Indeed, as Plaintiff concedes, the only reason

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Plaintiff included Dr. Chudy in the SAC is because Dr. Chudy signed the administrative appeal

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response at the second level of review, and because Plaintiff believed Dr. Chudy should be

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responsible through respondeat superior. (Pl. Depo. at 91.)

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The Court granted summary judgment in favor of Dr. Sepulveda because the evidence

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showed that when Dr. Sepulveda became aware of Plaintiff’s concerns, Plaintiff did not return to

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Dr. Ahmed before Plaintiff had his surgery and thus, Dr. Sepulveda could not have prevented

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further harm to Plaintiff by Dr. Ahmed’s hands.

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The Court also concluded that Plaintiff had not presented any evidence that any

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Defendant’s action or lack of action was the proximate cause of any alleged delay in Plaintiff’s

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surgery from September 30, 2008 to December 11, 2008. As the Court stated in its previous

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order, the undisputed evidence showed that Dr. Ahmed followed-up on the status of Plaintiff’s

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surgery on September 15 and September 30, 2008. On September 30, 2008, Dr. Ahmed’s notes

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state that Dr. Ahmed “spoke to UM Nurse. RN Nick to expedite [Plaintiff’s follow-up

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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appointment] and surgery. Explained to [Plaintiff].” (Pl. Ex. S.) On October 8, 2008, Plaintiff

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had a follow-up pre-surgery appointment at Natividad, and the Natividad doctor recommended

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an appendectomy and requested a scheduled follow-up. (Pl. Ex. U.) Plaintiff alleged that he

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submitted approximately five requests for health care services after September 30, 2008, but

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there was no record of any of those requests except one, dated November 4, 2008. (Pl. Decl. at

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¶ 51.) On that date, Plaintiff stated that he was waiting to have his appendectomy and requested

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a doctor’s visit. (Pl. Ex. V.) On November 7, 2008, the nurse’s notes state that a voice mail

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message was left for “Nick” on November 10, 2008. (Id.) Viewing the record, there was an

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absence of evidence that any purported delay from September 30, 2008, until Plaintiff’s surgery

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in December 2008, was proximately caused by Defendants’ action or lack of action. There was

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no evidence that any Defendant was responsible for the actual scheduling of an appendectomy at

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an outside hospital, or that any Defendant hindered such scheduling. Plaintiff conceded that he

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had no evidence demonstrating that Dr. Ahmed was responsible for the delay in Plaintiff’s

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surgery. (Pl. Depo. at 91.) Plaintiff also provided no evidence that Dr. Sepulveda or Dr. Chudy

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had any control over the scheduling of Plaintiff’s surgery. Finally, as the Court noted

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previously, Plaintiff acknowledged that he named Dr. Chudy in this lawsuit only because Dr.

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Chudy signed the administrative appeal. (Id.)

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Resolving the claim against Dr. Chudy would not require any additional or different

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evidence than that presented against Dr. Sepulveda because Dr. Chudy necessarily became aware

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of Plaintiff’s claims after Dr. Sepulveda. Plaintiff named Dr. Chudy only because he approved

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the administrative appeal response prepared by Dr. Sepulveda, and Plaintiff believed Dr. Chudy

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was vicariously liable. Thus, because summary judgment was granted in favor of Dr. Sepulveda,

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summary judgment was properly granted in favor of unserved Dr. Chudy. See, e.g., Gonzalez v.

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Runnels, No. 10-17379, 2011 WL 4542725, at *1 (9th Cir. 2011) (unpublished memorandum

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disposition) (“The district court also properly entered summary judgment for the nonappearing

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defendant Clark.”); Welch v. County of Sonoma, No. 04-5158 WHA, 2013 WL 2237856, at *7

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(N.D. Cal. May 21, 2013) (unpublished) (granting summary judgment in favor of nonappearing

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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defendants where nonappearing defendants were similarly situated to appearing defendants, and

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there was no evidence that plaintiff did not receive adequate medical care); Paredez v.

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Hernandez, No. 11-3351 SI, 2013 WL 269086, at *11 (N.D. Cal. Jan. 24, 2013 (unpublished)

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(granting summary judgment in favor of nonappearing defendant when plaintiff, in response to

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motion filed by appearing defendant, had full and fair opportunity to present evidence on

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dispositive issue as to claim against nonappearing defendant); Macho v. California Dept. of

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Corrections, No. 11-3100 PJH, 2013 WL 60882, at *5-6 (N.D. Cal. Jan. 3, 2013) (granting

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summary judgment in favor of nonappearing defendant when nonappearing defendant was

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similarly situated to other defendants); Histon v. Tilton, No. 09-0979 JSW, 2012 WL 476388, at

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*7 (N.D. Cal. Feb. 14, 2012) (granting summary judgment in favor of nonappearing defendant

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where Plaintiff had “full and fair opportunity to brief and present evidence” as to claim against

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nonappearing defendant), affirmed by No. 12-10763, 2013 WL 542478 (9th Cir. 2013)

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(unpublished memorandum disposition).

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In sum, Plaintiff has not presented newly discovered evidence, shown that the

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Court committed clear error or the initial decision was manifestly unjust, or demonstrated an

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intervening change in controlling law to warrant reconsideration. See School Dist. No. 1J, 5 F.3d

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at 1263. Plaintiff’s motion to reconsider the sua sponte grant of summary judgment in favor of

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Dr. Chudy is DENIED.

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B.

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Plaintiff argues that the Court improperly granted summary judgment in favor of Dr.

Supervisory Liability

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Sepulveda and Dr. Chudy because they were responsible for the “failed medical system at CTF”

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and Plaintiff’s resulting harm. However, Plaintiff does not make this broad policy claim against

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Dr. Sepulveda or Dr. Chudy in either his SAC or his opposition. Nor did Plaintiff assert that Dr.

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Sepulveda or Dr. Chudy should have been aware of such a “failed medical system” or failed to

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address it. Plaintiff’s allegations against these Defendants consisted of complaining that

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Defendants failed to correct Dr. Ahmed’s mistakes against Plaintiff, failed to assign Plaintiff a

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different doctor, and failed to ensure Plaintiff received a timely appendectomy. (SAC at ¶¶ E,

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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F.) Specifically, Plaintiff claimed that on October 9, 2008, “Plaintiff expresses to Dr. Sepulveda

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that he does not want to be in the care of Dr. Ahmed because of the pain and injury Ahmed

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caused Plaintiff and that the Plaintiff fears further harm and even more so after filing a CDCR

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602 grievance upon Ahmed. Plaintiff also brings to the attention of Dr. Sepulveda that he is

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currently overdue to return to Natividad Hospital to have his appendectomy surgery and that he

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fears Ahmed may not care about Plaintiff’s condition or his surgery.” (SAC at ¶ 30.) As to Dr.

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Chudy, Plaintiff alleged that, on October 21, 2008, Dr. Chudy was “made aware of Plaintiff’s

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circumstances and what transpired in regards to Dr. Ahmed’s treatment of the Plaintiff” and was

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“made aware” that Plaintiff remained in Dr. Ahmed’s care, but did not rectify the issue, and

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signed Dr. Sepulveda’s review at the second level of Plaintiff’s administrative appeal. (SAC at ¶

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32.) Thus, the theory that Dr. Sepulveda and Dr. Chudy were liable as supervisors for the failure

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of the prison’s entire medical care system was raised for the first time in Plaintiff’s motion for

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reconsideration.

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The Court will not reconsider the grant of summary judgment in favor of Dr. Sepulveda

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and Dr. Chudy based on a theory of liability raised for the first time in a motion for

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reconsideration. Plaintiff does not include new facts that he could not have discovered prior to

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issuance of the order granting summary judgment, nor does he include new facts that occurred

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after issuance of the order. See Civil L.R. 7-9(b)(1), (b)(2). The allegation is not newly

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discovered evidence, does not demonstrate that the Court committed clear error, and does not

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claim to include an intervening change in controlling law. See School Dist. No. 1J, 5 F.3d at

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1263. Plaintiff’s motion to reconsider the grant of summary judgment in favor of Dr. Sepulveda

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and Dr. Chudy as to this claim is DENIED.

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C.

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Plaintiff moves the Court to reconsider its order granting summary judgment in favor of

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Dr. Sepulveda and Dr. Chudy because there was no evidence that they were aware of Plaintiff’s

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concerns regarding Dr. Ahmed until October 2008, and Plaintiff’s last encounter with Dr.

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Ahmed was on September 30, 2008. Plaintiff has pointed out new material facts that

Dr. Sepulveda’s and Dr. Chudy’s deliberate indifference

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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demonstrate the possibility that Dr. Sepulveda and Dr. Chudy became aware of Plaintiff’s

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complaints as early as September 9, 2008 – the same day Plaintiff was told to return to Dr.

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Ahmed’s care, and before Plaintiff was treated by Dr. Ahmed two additional times.

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Before considering this particular claim, the Court directs Defendants to file an

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opposition to this claim within twenty-eight days of the filing date of this order. Plaintiff shall

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file his reply within fourteen days thereafter. Should the Court conclude that there is a genuine

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issue of material fact as to Dr. Sepulveda and Dr. Chudy, the Court will reinstate Dr. Sepulveda

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and Dr. Chudy as Defendants, and order that Plaintiff serve Dr. Chudy.

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D.

Delay

Finally, Plaintiff moves the Court to reconsider its order granting summary judgment in

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favor of all Defendants because there was no evidence that they were responsible for the two and

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a half month delay in Plaintiff’s receipt of surgery. Out of an abundance of caution, because the

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claim above may impact this claim, the Court directs Defendants to file an opposition to this

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claim as well within twenty-eight days of the filing date of this order. Plaintiff shall file his

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reply within fourteen days thereafter. Should the Court conclude that there is a genuine issue of

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material fact as to Dr. Sepulveda and Dr. Chudy, the Court will reinstate Dr. Sepulveda and Dr.

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Chudy as Defendants, and order that Plaintiff serve Dr. Chudy.

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CONCLUSION
Plaintiff’s motion for leave to file a renewed motion for reconsideration is GRANTED in

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part and DENIED in part. Defendants are directed to file an opposition to the above referenced

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deliberate indifference and delay claims within twenty-eight days of the filing date of this order.

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Plaintiff shall file his reply within fourteen days thereafter.

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IT IS SO ORDERED.
DATED: June 24, 2013
_________________
LUCY H. KOH
United States District Judge

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Order Granting in Part and Denying in Part Plaintiff’s Motion for Leave to File a Renewed Motion for
Reconsideration; Ordering Defendants to Respond
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