Tran v. Gore et al

Filing 247

ORDER (1) Adopting 232 Report and Recommendation and Denying Defendant Robert Callahan's 145 Motion for Summary Judgment; (2) Adopting 233 Report and Recommendation and Granting Defendants Omar Ortega and Sarandi Marina's 180 M otion for Judgment on the Pleadings; (3) Adopting 237 Report and Recommendation and Granting 204 Defendant John Gill's Motion for Summary Judgment. Signed by Judge Gonzalo P. Curiel on 9/29/2013. (All non-registered users served via U.S. Mail Service)(srm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

HOANG MINH TRAN,

12
13

Plaintiff,

14
15
16

v.

17
18

WILLIAM D. GORE et al.,

19
20
21
22
23

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:10-cv-0464-GPC-DHB
ORDER:
(1) ADOPTING REPORT AND
RECOMMENDATION AS TO
DEFENDANT ROBERT
CALLAHAN’S MOTION FOR
SUMMARY JUDGMENT;
(2) ADOPTING REPORT AND
RECOMMENDATION AS TO
DEFENDANTS OMAR ORTEGA
AND SARANDI MARINA’S
MOTION FOR JUDGMENT ON
THE PLEADINGS;
(3) ADOPTING REPORT AND
RECOMMENDATION AS TO
DEFENDANT JOHN GILL’S
MOTION FOR SUMMARY
JUDGMENT
(ECF NOS. 232, 145, 233, 180, 237,
204)

24
25

INTRODUCTION

26

On March 2, 2010, plaintiff Hoang Minh Tran (“Plaintiff”), a state prisoner

27

proceeding pro se and in forma pauperis, brought this action for violations of his civil

28

rights under 42 U.S.C. § 1983. Plaintiff alleges Defendants violated his Eighth and
3:10-cv-0464-GPC-DHB

1

Fourteenth Amendment rights on three separate occasions during pre-trial custody by

2

being deliberately indifferent to his medical needs and by using excessive force against

3

him. On March 2, 2010, Plaintiff filed his original complaint against Defendants.

4

(ECF No. 1.) On May 5, 2011, Plaintiff filed his First Amended Complaint (“FAC”).

5

(ECF No. 34.) The Court deemed Plaintiff’s Second Amended Complaint (“SAC”)

6

filed on May 25, 2012. (ECF Nos. 79, 131.)

7

On July 20, 2012, defendant Robert Callahan (“Callahan”) filed a motion for

8

summary judgment. (ECF No. 145.) On June 28, 2013, Magistrate Judge David H.

9

Bartick issued a report and recommendation, recommending Callahan’s Motion for

10

Summary Judgment be denied. (ECF No. 232.)

11

On December 21, 2012, defendants Omar Ortega (“Ortega”) and Saradin Marina

12

(“Marina”) filed a motion for judgment on the pleadings. (ECF No. 180.) On July 2,

13

2013, Judge Bartick issued a report and recommendation, recommending Ortega and

14

Marina’s Motion for Judgment on the Pleadings be granted. (ECF No. 233.) On July

15

18, 2013, Plaintiff filed an objection to this Report and Recommendation. (ECF No.

16

238.) On July 29, 2013, Ortega and Marina filed a reply to Plaintiff’s Objection.

17

(ECF. No. 239.)

18

On February 19, 2013, defendant John Gill (“Gill”) filed a motion for summary

19

judgment. (ECF No. 204.) On July 18, 2013, Judge Bartick issued a report and

20

recommendation, recommending Gill’s Motion for Summary Judgment be granted.

21

(ECF No. 233.) On September 10, 2013, Plaintiff filed an objection to this Report and

22

Recommendation. (ECF No. 245.) On September 13, 2013, Gill filed a reply to

23

Plaintiff’s Objection. (ECF No. 246.)

24

For the reasons set forth below, this Court: (1) ADOPTS the Report and

25

Recommendation as to Callahan’s Motion for Summary Judgment and therefore

26

DENIES Callahan’s Motion for Summary Judgment; (2) ADOPTS the Report and

27

Recommendation as to Ortega and Marina’s Motion for Judgment on the Pleadings

28

and therefore GRANTS Ortega and Marina’s Motion for Judgment on the Pleadings;
2

3:10-cv-0464-GPC-DHB

1

and (3) ADOPTS the Report and Recommendation as to Gill’s Motion for Summary

2

Judgment and therefore GRANTS Gill’s Motion for Summary Judgment.
BACKGROUND1

3

Plaintiff’s claims arise from three separate incidents that he alleges occurred

4
5

while he was in pre-trial custody.

Plaintiff alleges the first incident occurred in

6

January 2009 when Marina and Gill ignored Plaintiff’s request for a seizure medication

7

called Dilantin, which caused Plaintiff to suffer a seizure on January 4, 2009, that

8

required emergency medical treatment. (ECF No. 34.) Plaintiff alleges the second

9

incident occurred on February 2, 2009, when Callahan assaulted Plaintiff while en

10

route to court on a prison bus, which caused Plaintiff to suffer a ruptured hernia. (ECF

11

No. 79.) Plaintiff alleges the third incident occurred on March 2, 2009, when three

12

deputies assaulted him in his prison cell. (ECF Nos. 34, 79.)

13

I.

The Original Complaint

14

Plaintiff filed his original Complaint against defendants William D. Gore

15

(“Gore”), Alfredo Martinez (“Martinez”), Jessie Holland (“Holland”), and Ortega on

16

March 2, 2010. (ECF No. 1.) While Plaintiff named Ortega as a defendant, Plaintiff

17

did not allege that Ortega participated in any of the three incidents underlying

18

Plaintiff’s case. (Id.)

19

On March 14, 2011, the Court adopted a report and recommendation to grant in

20

part and deny in part Defendants’ Motion to Dismiss. (ECF Nos. 31& 26.) The March

21

14, 2011 Order stated that “Plaintiff’s Amended Complaint must be complete in itself

22

without reference to his original Complaint[,] [and] [a]ny Defendant not named and any

23

claim not re-alleged in the Amended Complaint will be considered waived.” (ECF No.

24

31 at 2.)

25

II.

First Amended Complaint

26

On May 5, 2011, Plaintiff filed his FAC, naming additional defendants Derrick

27

Jones (“Jones”), Dennis Flynn (“Flynn”), Edwin Schroeder (“Schroeder”), Brian

28
1

The factual background is taken from Plaintiff’s FAC and SAC.
3

3:10-cv-0464-GPC-DHB

1

Conway (“Conway”), Gill, Lizzie Womack (“Womack”), Jane Doe Defendants, John

2

Doe Defendants, Doe Escobar, and Doe Hanson. (ECF No. 34.)

3

The FAC did not name Ortega as a defendant, and Plaintiff did not alleges any

4

facts against Ortega. (Id.) The Summons to Jane Doe 1-3 that was returned executed

5

on June 13, 2012, shows that Plaintiff served Marina as one of the three Jane Doe

6

defendants, referenced in the FAC. (Id.; ECF No. 48.)

7

III.

Second Amended Complaint

8

On July 29, 2011, Plaintiff filed a motion to notify “sky alert” for defendant Doe

9

Hanson. (ECF No. 60.) The Court construed Plaintiff’s Motion as a motion for

10

discovery and scheduled a discovery conference for September 19, 2011. (ECF No.

11

63.) At the discovery conference, Plaintiff provided a detailed description of defendant

12

Doe Hanson, including the purported identification of a tattoo on Doe Hanson.

13

Defendants’ counsel agreed to perform a due diligence search to identify the person

14

matching the description provided by Plaintiff. (ECC No. 67.)

15

On September 28, 2011, Defendants filed a notice of due diligence compliance

16

stating that Callahan, an employee of the transportation division of the Sheriff’s

17

Department, fit Plaintiff’s description of Doe Hanson. (ECF No. 69.) On May 25,

18

2012, the Court permitted Plaintiff to file the SAC that substituted Callahan for

19

Defendant Doe Hanson.2 (ECF No. 131.)

20

In his SAC, Plaintiff also named the County of San Diego, Gore, Callahan, John

21

Doe 1-10, and Jorge Escobar (“Escobar”) as defendants. (ECF No. 79.) Plaintiff did

22

not name Ortega, Gill, Jane Doe, or Marina as defendants. (Id.) Neither did Plaintiff

23

allege any facts relating to Ortega in the SAC. (Id.)

24
2

25
26
27
28

On November 18, 2011, Plaintiff filed his SAC, naming Callahan as a defendant. (ECF No.
79.) Judge Bartick construed Plaintiff’s SAC as a motion to amend his FAC. (See ECF No. 119 at
1.) In a report and recommendation filed on May 2, 2012, Judge Bartick recommended the Motion
to Amend be granted with regard to adding Defendant Callahan but denied with regard to asserting a
Monell claim against the County of San Diego be denied. (Id. at 2.) On May 25, 2012, Judge Sabraw
adopted these aspects of this Report and Recommendation. (ECF No. 131 at 2.) Plaintiff could have,
thereafter, filed a SAC that conformed with Judge Sabraw’s Order. Because he did not, however, the
docketed SAC—minus any Monell claim against the County of San Diego—remains the operative
pleading. (See ECF No. 79.)
4

3:10-cv-0464-GPC-DHB

1

IV.

Defendants’ Motions

2

On April 30, 2012, Gore, Holland, Martinez, Ortega, Conway, Escobar, Flynn,

3

Jones, Marina, Schroeder, and Womack filed a motion for summary judgment. (ECF

4

No. 118.) Neither Callahan nor Gill joined this Motion for Summary Judgment. On

5

August 15, 2012, Judge Sabraw granted in part and denied in part the Motion for

6

Summary Judgment, ruling that the SAC stated no due process claim against any of the

7

Defendants. (ECF No. 154.) Accordingly, Judge Sabraw dismissed Plaintiff’s claims

8

against Gore, Conway, Flynn, Jones, and Schroeder. (Id. at 2 n.3.) Judge Sabraw also

9

granted summary judgment in favor of Womack but denied summary judgment in favor

10

of Holland, Martinez, and Escobar with regard to Plaintiff’s excessive force claim

11

arising from the March 2, 2009 incident. (Id. at 6-7.)

12

Judge Sabraw did not address Callahan and Gill’s liability because they did not

13

join the Motion. (ECF No. 154 at 1 n.1, 4 n.4.) As to Ortega and Marina, Judge

14

Sabraw stated “[their] involvement in this case is unclear.” (Id. at 3.)

15

STANDARD OF REVIEW

16

The district court’s role in reviewing a magistrate judge’s report and

17

recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district

18

court “shall make a de novo determination of those portions of the report . . . to which

19

objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

20

or recommendations made by the magistrate [judge].” Id. When no objections are

21

filed, the Court may assume the correctness of the magistrate judge’s findings of fact

22

and decide the motion on the applicable law. Campbell v. United States Dist. Court,

23

501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217

24

(S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that “a failure

25

to file objections only relieves the trial court of its burden to give de novo review to

26

factual findings; conclusions of law must still be reviewed de novo.” Barilla v. Ervin,

27

886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708

28

F.2d 452, 454 (9th Cir. 1983)).
5

3:10-cv-0464-GPC-DHB

DISCUSSION

1
2

I.

Report and Recommendation as to Callahan’s Motion for Summary

3

Judgment

4

Judge Bartick recommends that Callahan’s Motion for Summary Judgment be

5

denied. Neither party has filed a specific objection to the findings and conclusions

6

contained in this Report and Recommendation.3 As such, the Court assumes the

7

correctness of the Magistrate Judge’s factual findings and adopts them in full.

8

The Court has conducted a de novo review, independently reviewing the Report

9

and Recommendation and all relevant papers submitted by both parties, and finds that

10

the Report and Recommendation provides a cogent analysis of the issues presented in

11

Callahan’s Motion. Accordingly, the Court ADOPTS the Report and Recommendation

12

as to Callahan’s Motion for Summary Judgment in its entirety and therefore DENIES

13

Callahan’s Motion for Summary Judgment.

14

II.

Report and Recommendation as to Ortega and Marina’s Motion for

15

Judgment on the Pleadings

16

Judge Bartick recommends that Ortega and Marina’s Motion for Judgment on

17

the Pleadings be granted. Plaintiff objects to the Report and Recommendation because

18

he believes his pleadings should be held to less stringent standards. Before addressing

19

Ortega and Marina’s Motion for Judgment on the Pleadings, the Court must first

20

address the flaws of Plaintiff’s pleadings with respect to these two defendants.

21

A.

Plaintiff Failed to Name Ortega and Marina in the SAC

22

Plaintiff named Ortega in his original Complaint, but did not name Ortega in any

23

subsequent pleading. (See ECF Nos. 1, 34, 79.) Neither did Plaintiff allege any facts

24

against Ortega in any pleading. As to Marina, Plaintiff served her with the FAC but

25
26
27
28

3

On July 18, 2013, Plaintiff filed an objection to the Report and Recommendation as to Ortega
and Marina’s Motion for Judgment on the Pleadings. (ECF No. 238.) Plaintiff also references
Callahan in this Objection. (ECF No. 238.) Plaintiff, however, makes no specific or substantive
objection to the Report and Recommendation concerning Callahan’s Motion for Summary Judgement.
(Id. at 2-4.) Rather, Plaintiff alleges facts related to the March 2, 2009 prison cell assault, which did
not involve Callahan. (Id. at 3.)
6

3:10-cv-0464-GPC-DHB

1

did not name her as a defendant in either the FAC or the SAC. (See ECF Nos. 34, 79.)

2

“The general rule is that an amended complaint supercedes the original

3

complaint and renders it without legal effect.” Lacey v. Maricopa County, 693 F.3d

4

896, 927 (9th Cir. 2012). “[O]nce an amended complaint is filed, the original pleading

5

no longer serves any function in the case.” Hasegawa v. State of Hawaii, 2011 WL

6

2020715, at *1 n.1 (D. Haw. May 24, 2011). Accordingly, all claims not re-alleged

7

in the amended complaint will be deemed to have been waived. King v. Atiyeh, 814

8

F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey, 693 F.3d 896.

9

Defendants not named in an amended complaint are no longer defendants in the action.

10

Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992).

11

Pro se litigants are not held to the same standard as attorneys. Haines v. Kerner,

12

404 U.S. 519, 521 (1972). Pleadings by pro se litigants, regardless of deficiencies,

13

should only be judged by function, not form. Haines, 404 U.S. at 521. Nonetheless,

14

a pro se plaintiff is not entirely immune from the civil rules of procedure. Hernandez

15

v. Nye County School Dist., 2011 WL 2938274, at *1 (D. Nev. July 19, 2011).

16

Although the Court must construe pro se pleadings liberally, “pro se litigants must

17

follow the same rules of procedure that govern other litigants.” See King, 814 F.2d at

18

567; see also Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (“Pro se litigants are bound

19

by the rules of procedure.”).

20

Here, the Court merely confirms that Ortega and Marina are no longer

21

defendants in this action. First, as previously mentioned, the SAC is currently the

22

operative pleading in this action. As such, the SAC supersedes Plaintiff’s prior

23

pleadings. See Lacey, 693 F.3d at 927. Second, Plaintiff did not name Ortega or

24

Marina in the SAC. Similarly, other than naming Ortega in his original Complaint,

25

Plaintiff did not name Ortega as a defendant in either the FAC or the SAC. (ECF Nos.

26

34, 79.) In fact, Plaintiff has never alleged facts against Ortega in any of his pleadings,

27

and he has admitted that he wants to dismiss Ortega from the case. (See ECF Nos. 1,

28

34, 79; see also ECF No. 118-5 at 62-63.) As to Marina, Plaintiff never formally
7

3:10-cv-0464-GPC-DHB

1

named her as a defendant in the FAC or the SAC despite attempting to include her as

2

a Jane Doe Defendant by serving her with the FAC. (See ECF Nos. 34, 79.)

3

Furthermore, in the March 14, 2011 Order, the Court advised Plaintiff that “any

4

[d]efendant not named and any claim not re-alleged in the [a]mended [c]omplaint will

5

be considered waived.” (ECF No. 31 at 2.) Thus, Plaintiff had ample opportunity to

6

correct his pleadings but failed to do so. As a result, Plaintiff effectively abandoned

7

any claims against Ortega and Marina. Accordingly, Ortega and Marina are no longer

8

defendants in this action.

9
10
11

B.

Plaintiff’s SAC Fails to State a Claim Against Marina

Even if Marina were properly named in the FAC or the SAC, Plaintiff has failed
to state a claim for deliberate indifference to his medical needs against her.

12

A motion for judgment on the pleadings is governed by Rule 12(c), which states,

13

“[a]fter the pleadings are closed – but early enough not to delay trial – any party may

14

move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The purpose of a Rule

15

12(c) motion is to challenge the sufficiency of the opposing party’s pleadings, and the

16

court applies the same standard as a motion under Rule 12(b)(6). Sprint Telephony

17

PCS, L.P. v. Cnty. of San Diego, 311 F. Supp. 2d 898, 902 (S.D. Cal. 2004) (“A Rule

18

12(c) motion for judgment on the pleadings and a Rule 12(b)(6) motion to dismiss are

19

virtually interchangeable.”). Accordingly, judgment on the pleadings is appropriate

20

when the moving party “clearly establishes on the face of the pleadings that no material

21

issue of fact remains to be resolved and that it is entitled to judgment as a matter of

22

law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th

23

Cir. 1989); see also General Conf. Corp. v. Seventh-Day Adventist Church, 887 F.2d

24

228, 230 (9th Cir. 1989) (“Judgment on the pleadings is proper when there are no

25

issues of material fact, and the moving party is entitled to judgment as a matter of

26

law.”).

27

Deliberate indifference to an inmate’s serious medical needs “may appear when

28

prison officials deny, delay or intentionally interfere with medical treatment, or it may
8

3:10-cv-0464-GPC-DHB

1

be shown by the way in which prison physicians provide medical care.” McGuckin

2

v.Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by

3

WMXTechnologies v. Miller, 104 F.3d 1133 (9th Cir. 1997). A determination of

4

deliberate indifference focuses on a plaintiff’s medical need and the nature of the

5

defendant’s response to that need. McGuckin, 974 F.2d at 1059. A plaintiff must set

6

forth specific facts as to each individual defendant’s deliberate indifference. Leer v.

7

Murphy, 844 F.2d 628, 634 (9th Cir. 1988). Accordingly, to state a claim for deliberate

8

indifference, a plaintiff must allege that the defendant “[knew] of and disregard[ed] an

9

excessive risk to the plaintiff’s health and safety; defendant must be both aware of facts

10

from which the inference could be drawn that a substantial risk of serious harm exists,

11

and [defendant] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825,

12

837-38 (1994).

13

Here, even liberally construed, Plaintiff’s FAC and SAC fail to plead facts

14

stating a claim against Marina for deliberate indifference. Plaintiff alleges that he

15

repeatedly yelled at facility nurses for his seizure medication, but they ignored him.

16

(ECF No. 34 at 6.) As a result, he suffered an epileptic seizure so severe he was taken

17

to a local hospital, where a physician noted the level of Dilantin in his blood was

18

insufficient to avoid a seizure. Id. Although Plaintiff attributed his seizure to Marina’s

19

failure to provide Dilantin, Plaintiff did not allege Marina knew of Plaintiff’s medical

20

need for Dilantin. Nor did Plaintiff allege Marina consciously disregarded an excessive

21

risk to his health and safety. Because Plaintiff did not allege that Marina knew of facts

22

that would have allowed her to infer Plaintiff was at risk of harm, or that Marina

23

actually drew this inference, Plaintiff has failed to sufficiently state a claim against

24

Marina. Thus, Marina is entitled to judgment as matter of law.

25

Based on the foregoing, Plaintiff’s Objection as to this Report and

26

Recommendation is OVERRULED.

The Court ADOPTS the Report and

27

Recommendation as to Ortega and Marina’s Motion for Judgment on the Pleadings in

28
9

3:10-cv-0464-GPC-DHB

1

its entirety4 and therefore GRANTS Ortega and Marina’s Motion for Judgment on the

2

Pleadings.

3

III.

Report and Recommendation as to Gill’s Motion for Summary Judgment

4

Judge Bartick recommends that Gill’s Motion for Summary Judgment be

5

granted. Plaintiff objects to the Report and Recommendation because Plaintiff

6

disagrees with the standard for summary judgment and alleges Gill did not prescribe

7

Dilantin for him but instead falsified the medical record. Before addressing the merits

8

of Gill’s Motion for Summary Judgment, the Court must first address the flaws of

9

Plaintiff’s pleadings with respect to Gill.

10

A.

Plaintiff Fails to Name Gill in the SAC

11

Plaintiff did not name Gill as a defendant in the SAC. The Court observes,

12

however, that Plaintiff appears to have intended to name Gill as a defendant in the SAC

13

by incorporating the FAC by reference into the SAC.5 (ECF No. 79 at 3.) Although

14

the Court has the duty to construe Plaintiff Complaint liberally, see King, 814 F.2d at

15

567, the Court has already cautioned Plaintiff that an “[a]mended [c]omplaint must be

16

complete in itself without reference to his [prior pleading].” (ECF No. 31 at 2.) As

17

discussed above, the SAC is currently the operative complaint; thus, because Plaintiff

18

did not name Gill in the SAC, he is no longer a defendant and must be considered

19

dismissed.

20

B.

21

Even if Plaintiff had specifically named Gill in the SAC, there is no genuine

22

dispute regarding the fact that Gill prescribed Dilantin for Plaintiff on December 14,

23

2008.

24

Plaintiff Fails to Raise a Genuine Issue of Material Fact

Summary judgment is appropriate under Rule 56(c) where the moving party

25
4

26
27

The Court agrees with Judge Bartick’s factual findings and substantive analysis of the claims
presented in the Motion. As discussed above, however, the Court also found it necessary to address
Plaintiff’s pleading deficiencies.
5

28

Plaintiff has been using the Court’s form civil rights complaint in this action. Rather than
specifically naming Gill as a defendant in his SAC, Plaintiff states “please see [page 6 of] Plaintiff’s
First Amended Complaint” under the Supporting Facts section of the SAC.
10

3:10-cv-0464-GPC-DHB

1

demonstrates the absence of a genuine issue of material fact and entitlement to

2

judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.

3

317, 322(1986). “A material issue of fact is one that affects the outcome of the

4

litigation and requires a trial to solve the parties’ differing versions of the truth.”

5

S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

6

A party seeking summary judgment always bears the initial burden of

7

establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

8

The moving party can satisfy this burden in two ways: (1) by presenting evidence that

9

negates an essential element of the nonmoving party’s case, or (2) by demonstrating

10

that the nonmoving party failed to make a showing sufficient to establish an element

11

essential to that party’s case on which that party will bear the burden of proof at trial.

12

Id. at 322-23. “Disputes over irrelevant or unnecessary facts will not preclude a grant

13

of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809

14

F.2d 626, 630 (9th Cir. 1987).

15

The burden then shifts to the non-moving party to establish, beyond the

16

pleadings, that there is a genuine issue for trial. Celotex, 477 U.S. at 324. To

17

successfully rebut a properly supported motion for summary judgment, the non-moving

18

party “must point to some facts in the record that demonstrate a genuine issue of

19

material fact and, with all reasonable inferences made in the [non-moving party’s]

20

favor, could convince a reasonable jury to find for the [nonmoving party].” Reese v.

21

Jefferson School Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000) (citing Fed. R. Civ.

22

P. 56; Celotex, 477 U.S. at 323; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

23

(1986)). “To defeat a summary judgment motion . . . , the non-moving party may not

24

rest upon the mere allegations or denials in the pleadings.” Fed. R. Civ. P. 56(e).

25

Further, the non-moving party cannot create a genuine issue of material fact by simply

26

making argumentative assertions in legal memoranda. S.A. Empresa, Etc. v.

27

WalterKidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982). Instead, the non-moving

28

party must “go beyond the pleadings and by [his] own affidavits, or by the depositions,
11

3:10-cv-0464-GPC-DHB

1

answers to interrogatories, and admissions on file, designate specific facts showing

2

that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. Conclusory

3

allegations without supporting evidence are insufficient to create an issue of material

4

fact. Hansen v. Untied States, 7 F.3d 137, 138 (9th Cir. 1993).

5

If the moving party fails to discharge this initial burden, summary judgment must

6

be denied and the court need not consider the nonmoving party’s evidence. Adickes

7

v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). The court, however, cannot make

8

credibility determinations or weigh evidence at the summary judgment stage.

9

Anderson, 477 U.S. at 255; see also Nelson v. City of Davis, 571 F. 3d 924, 929 (9th

10

Cir. 2009) (“A judge must not grant summary judgment based on his determination that

11

one set of facts is more believable than another.”).

12

Here, Judge Barick correctly concluded there is no genuine dispute of material

13

fact with regard to whether Gill prescribed Dilantin for Plaintiff on December 14, 2008.

14

In support of his Motion for Summary Judgment, Gill submitted declarations and

15

medical records showing that: Gill prescribed Dilantin for Plaintiff the first time he saw

16

Plaintiff on December 14, 2008, (ECF Nos. 204-3 at 19, 204-4 at 2, ¶ 6); Plaintiff

17

received the Dilantin, (ECF No. 204-4 at 7); Gill performed a chart check confirming

18

the prescription, (ECF No. 204-3 at 25; Id. at 3, ¶ 7); and Dilantin was present in

19

Plaintiff’s system on the date of his seizure, (ECF No. 204-3 at 4; 204-4 at 29-30).

20

In opposition, Plaintiff submitted an incomplete medical chart that stated

21

Dilantin administration was discontinued at the strengths of 200 mg and 300 mg. (ECF

22

No. 34 at 27.) Nothing that Plaintiff submitted, however, shows that Gill did not

23

prescribe Dilantin for Plaintiff.

24

Even viewing the evidence in the light most favorable to Plaintiff, no reasonable

25

jury could conclude Gill did not prescribe any Dilantin for Plaintiff on December 14,

26

2008. Accordingly, Judge Bartick correctly concluded there is no genuine issue of

27

material fact as to whether Gill prescribed Dilantin for Plaintiff without making

28

credibility determination or weighing evidence.
12

3:10-cv-0464-GPC-DHB

1

Furthermore, Plaintiff’s allegation that Gill altered the medical record is without

2

merit. A non-moving party cannot create a genuine issue of material fact by simply

3

making argumentative assertions in legal memoranda. S.A. Empresa, Etc., 690 F.2d

4

at 1238. Although Plaintiff objects to the Report and Recommendation by arguing that

5

Gill falsified the medical records, Plaintiff did not provide any evidence to support this

6

claim. Thus, because Gill has adequately shown an absence of probative evidence to

7

support Plaintiff’s deliberate indifference claim, summary judgment is appropriate.
Based on the foregoing, Plaintiff’s Objection to this Report and

8
9

Recommendation is OVERRULED.

The Court ADOPTS the Report and

10

Recommendation as to Gill’s Motion for Summary Judgment in its entirety6 and

11

therefore GRANTS Gill’s Motion for Summary Judgment.

12

CONCLUSION AND ORDER

13

For the reasons set forth above, IT IS HEREBY ORDERED that:

14

1.

Judge Bartick’s Report and Recommendation as to Callahan’s Motion for
Summary Judgment are ADOPTED in its entirety;

15
16

2.

Callahan’s Motion for Summary Judgment is DENIED;

17

3.

Judge Bartick’s Report and Recommendation as to Ortega and Marina’s
Motion for Judgment on the Pleadings is ADOPTED in its entirety;

18

4.

19

Ortega and Marina’s Motion for Judgment on the Pleadings is
GRANTED;

20

5.

21

Judge Bartick’s Report and Recommendation as to Gill’s Motion for
Summary Judgement is ADOPTED in its entirety;

22

6.

23
24

///

25

///

26

Gill’s Motion for Summary Judgement is GRANTED; and

///

27
6

28

The Court agrees with Judge Bartick’s factual findings and substantive analysis of the claims
presented in the Motion. The Court found it necessary, however, to also address Plaintiff’s pleading
deficiencies.
13

3:10-cv-0464-GPC-DHB

1

7.

The Clerk of Court shall enter judgment in accordance with this Order.

2
3

DATED: September 29, 2013

4
5

HON. GONZALO P. CURIEL
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14

3:10-cv-0464-GPC-DHB