Arellano v. Milton et al

Filing 105

ORDER (1) Adopting 103 the Magistrate Judge's Report and Recommendation as amended; (2) Sustaining in part and overruling in part Defendant's objections; (3) Granting in part and denying in part 59 Defendants' Motion for Summary Judgment. Signed by Judge John A. Houston on 9/25/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARELLANO,

Case No.: 15-cv-2069-JAH-MDD
Plaintiff,

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v.

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ORDER:

MELTON, et al,

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(1) ADOPTING THE MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION AS
AMENDED;

Defendants.

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(2) SUSTAINING IN PART AND
OVERRULING IN PART
DEFENDANTS’ OBJECTIONS;

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(3)GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

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INTRODUCTION

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Pending before the Court is H. Melton, J. Chau M.D., M. Glynn, S. Roberts, M.D.,

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and J. Lewis’ (collectively “Defendants”) Motion for Summary Judgment. [Doc. No. 59].

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The Honorable Clinton E. Averitte, United States Magistrate Judge, issued a report and

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recommendation (“Report”) recommending the Court grant in part and deny in part
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Defendants’ Motion for Summary Judgment. See Doc. No. 103. After careful consideration

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of the pleadings, and for the reasons set forth below, this Court OVERRULES in part

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and SUSTAINS in part Defendants’ objections, ADOPTS the magistrate judge’s Report

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as amended, and GRANTS in part and DENIES in part Defendants’ motion for summary

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judgment.
BACKGROUND1

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Plaintiff, a state prisoner proceeding pro se, originally filed a complaint pursuant to

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42 U.S.C. § 1983 on September 16, 2015. Doc. No. 1. Following this Court’s order

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dismissing the complaint with leave to amend for failure to state a claim, Plaintiff filed a

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First Amended Complaint (“FAC”) on May 25, 2016, alleging Defendants violated his

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Eighth Amendment rights, the American with Disabilities Act (“ADA”), and his procedural

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due process. See Doc. No. 12. On September 1, 2017, Defendants filed this Motion for

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Summary Judgment. Doc. No. 59. On August 23, 2018, the Honorable Clinton E. Averitte,

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United States Magistrate Judge, issued a report and recommendation (“Report”)

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recommending the Court deny Defendants’ motion for summary judgment as to the Eighth

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Amendment deliberate indifference claim against Melton, and grant Defendants’ motion

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as to all other claims. See Doc. No. 103. Plaintiff filed no objections. Defendants’ filed

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timely objections to the Report. See Doc. No. 104.

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DISCUSSION

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I.

Legal Standard

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

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

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make a de novo determination of those portions of the report . . . to which objection is

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

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The underlying facts set forth in the magistrate judge’s report, to which Defendants present no objection,
are adopted in toto, and referenced as if fully set forth herein.
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recommendations made by the magistrate [judge].” Id. The party objecting to the

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magistrate judge’s findings and recommendation bears the responsibility of specifically

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setting forth which of the magistrate judge’s findings the party contests. See Fed. R. Civ.

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P. 72(b). It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a

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district court may adopt those parts of a magistrate judge’s report to which no specific

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objection is made, provided they are not clearly erroneous. See Thomas v. Arn, 474 U.S.

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140, 153-55 (1985).

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II.

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Analysis
a. Magistrate Judge’s Recommendation

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The magistrate judge recommended that this Court grant in part and deny in part

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Plaintiff’s Motion for Summary Judgment. See Doc. No. 103. The magistrate judge found

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that a reasonable fact finder could conclude that Melton was deliberately indifferent to

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Plaintiff’s serious medical needs when she withheld his epilepsy medicine on July 22,

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2014. Id. In addition, the magistrate judge determined that Melton is not entitled to

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qualified immunity because the “refusal of prescribed epilepsy medication can be a

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violation of a clearly established constitutional right . . . .” Id. (citing Jones v. Faulkner

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Cty., 609 F. App'x 898, 900 (8th Cir. 2015)). The magistrate judge held that Defendants

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Chau, Roberts, Glynn, and Lewis were entitled to summary judgment as to Plaintiff’s

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Eighth Amendment deliberate indifference claims because they were protected by qualified

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immunity. Id. In terms of Plaintiff’s ADA claims, the magistrate judge found that Plaintiff

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failed to provide sufficient evidence to show that he was “denied the benefits of [a] program

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solely and intentionally” because of a disability.” As such, the Report recommends

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granting Defendants’ summary judgment as to Plaintiff’s ADA claims. Id. Finally, the

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magistrate judge finds that there was no violation of procedural due process, and summary

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judgment should be granted to Defendants as to Plaintiff’s due process claim. Id.

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This Court may adopt the magistrate judge’s findings and conclusions presented in

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the report that were not objected to so long as they are not clearly erroneous. See Thomas,

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474 U.S. at 153. This Court’s careful de novo review, as to the portions of the Report not
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specifically objected to, confirms that the magistrate judge presented a cogent analysis and,

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thus, finds the magistrate judge’s findings and conclusions are not clearly erroneous.

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Accordingly, this Court ADOPTS in full all portions of the magistrate judge’s Report

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where no specific objection was raised.

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b. Defendants’ Objections

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Defendants object to the magistrate judge’s recommendation to deny summary

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judgment as to Plaintiff’s Eighth Amendment deliberate indifference claim against Melton.

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See Doc. No. 104. Defendants argue that the magistrate judge’s report erred in two

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respects. First, Defendants argue that Plaintiff did not present sufficient evidence to

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demonstrate that Melton’s refusal of prescribed medicine was the direct and proximate

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cause of Plaintiff’s alleged injury. Id., pgs. 3–5. Second, Defendants contend that there is

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no triable issue of fact as to the objective or subjective elements of Plaintiff’s deliberate

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indifference claim against Melton. Id., pgs. 5–8. For reasons discussed below, the Court

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will first analyze the latter.

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i. Objective and Subjective Elements of Deliberate Indifference Claim

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The “deliberate indifference” standard involves an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer v.

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Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In

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applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s

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civil rights have been abridged, “the indifference to his medical needs must be substantial.

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Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of

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action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle,

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429 U.S. at 105-06). Even gross negligence is insufficient to establish deliberate

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indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th

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Cir.1990). The second prong involves the subjective component. The prison official must

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act with a “sufficiently culpable state of mind,” which entails more than mere negligence,

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but less than conduct undertaken for the very purpose of causing harm. Farmer, 511 U.S.

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at 837. A prison official does not act in a deliberately indifferent manner unless the official

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“knows of and disregards an excessive risk to inmate health or safety.” Id.

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1. Objective Element

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Defendants agree with the general proposition advanced in the magistrate judge’s

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report that “epilepsy is a serious medical need.” Doc. No. 104, pg. 6. However, Defendants

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contend that Plaintiff has presented no evidence that “every single dose of anti-seizure

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medicine amounts to a serious medical need.” Id. Furthermore, Defendants argues that it

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was improper for the magistrate judge to consider Plaintiff’s previous missed doses

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because the claim arises solely from the single dose that Melton refused him. Id., pg. 7.

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Defendants have conflated the objective element with the subjective element. To

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satisfy the objective element in a deliberate indifference claim Plaintiff need only show

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that he has a “serious medical need.” See Escobar v. Smith, No. 2:12-CV-0773 GEB DAD,

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2013 WL 6389034, at *3 (E.D. Cal. Dec. 6, 2013) (citing Farmer, 511 U.S. at 834) (“By

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establishing the existence of a serious medical need, a prisoner satisfies the objective

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requirement for proving an Eighth Amendment violation.”). The Ninth Circuit has held

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that a “serious medical need” is one that has been diagnosed by a physician as mandating

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treatment or that a reasonable doctor or patient would find important and worthy of

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comment or treatment. See, e.g., Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th

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Cir.1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200–01 (9th Cir.1989). There

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is no dispute that Plaintiff was an epileptic, and was prescribed medication to treat his

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condition. See Doc. No. 59–3. The Court finds that a reasonable juror could conclude that

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plaintiff’s epilepsy constituted an objectively serious medical need.

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2. Subjective Element

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Defendants argue that the magistrate judge incorrectly infers that Melton “had

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knowledge that the dose amounted to a serious need and that she nonetheless refused to

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provide him with it.” Doc. No. 104, pg. 7. Defendants argue there is no evidence in the

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record to show that Melton was the individual responsible for reviewing and filling out

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Plaintiff’s Medication Administration Record (“MAR”). Id. Defendants explain that nurses
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responsible for administering Plaintiff’s medicine are identified on the MAR for the month

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of July and Melton’s name or initials do not appear on the sheet. Id. Defendants argue that

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this lack of evidence contradicts the magistrate judge’s inference that Melton was required

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to fill out the MAR and therefore would have been aware of Plaintiff’s numerous missed

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doses. Id. Defendants argue that the only evidence submitted by Plaintiff that Defendant

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Melton was even the nurse providing medicine on July 22, 2014 was his sworn testimony.

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Id. In his testimony, Plaintiff declared that he informed Melton that he “really needed [his

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epilepsy medicine] . . . because I felt [] dizziness, weakness, which [are] usually signs for

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a seizure coming up.” Doc. No. 59 – 2, pgs. 8–9. Defendants contend this sworn statement

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is insufficient to raise a genuine issue of material fact because it is so inconsistent with the

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other evidence in the record. See Doc. No. 104, pg. 8 (citing Scott v. Harris, 550 U.S. 372,

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380 (2007)).

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As stated above, in order to satisfy the subjective component of deliberate

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indifference, the inmate must show that prison officials “kn[e]w [ ] of and disregard[ed]”

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the substantial risk of harm, but the officials need not have intended any harm to befall the

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inmate; “it is enough that the official acted or failed to act despite his knowledge of a

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substantial risk of serious harm.” Farmer, 511 U.S. at 837, 842. The Ninth Circuit has held

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that this inquiry is extremely “fact-intensive and typically should not be resolved at the

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summary judgment stage.” Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062,

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1078 (9th Cir. 2013) (citing Farmer, 511 U.S. at 842) (“Whether a prison official had the

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requisite knowledge of a substantial risk is a question of fact subject to demonstration in

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the usual ways, including inference from circumstantial evidence, and a factfinder may

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conclude that a prison official knew of a substantial risk from the very fact that the risk

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was obvious.”).

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Here, Plaintiff’s testimony was that on July 22, 2014 he informed Melton of his

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symptoms, and that these symptoms typically proceed an impending seizure. See Doc. No.

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59–2, pgs. 8–9. Plaintiff further alleges that Melton refused to provide him with his

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prescribed epilepsy medication because he was using a temporary paper identification
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instead of the proper “plastic ID.” Id. at pg. 11. In the early morning hours of July 23, 2014,

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Plaintiff alleges that he had a seizure, which caused bumps and cuts to his head and severe

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pain to his head and body. See Doc. No. 12, pg. 6. Based on this evidence, the magistrate

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judge found a triable issue of fact as to whether Melton “knew of and disregarded” the

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substantial risk of harm to Plaintiff by refusing his epilepsy medication. In addition, the

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magistrate judge specifically found that Melton was “considered to have notice of the

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missed doses during the relevant period” because of an “absence of evidence to the

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contrary.” Doc. No. 103, pgs. 3–4. This Court disagrees with the magistrate judge’s finding

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that Melton was aware of Plaintiff’s prior missed doses. The evidence of record is that

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Melton was not identified on the MARS for the month of July, and therefore, the only

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reasonable inference is that she was not the individual responsible for reviewing and filling

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out Plaintiff’s MARS. See Doc. No. 59–3, ex. 4. Defendants’ objection as to that particular

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magistrate judge finding is SUSTAINED.

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However, there is evidence, in the form of Plaintiff’s deposition testimony, to

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support a reasonable inference that Melton was the individual dispersing medication on

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July 22, 2014. See Doc. No. 59–2, pgs. 8–9. As the magistrate judge noted, Defendants

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have submitted no evidence suggesting Melton was not the pill line nurse on the date

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alleged. Furthermore, Plaintiff’s testimony is that he informed Melton that he was

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experiencing pre-seizure symptoms, and that he “really needed [his epilepsy medication].”

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Id. The Court finds that, even if Melton was unaware of Plaintiff’s previous missed doses,

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a reasonable jury could determine that Melton was cognizant of the substantial risk of harm

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to Plaintiff by refusing him his epilepsy medication after she was informed that an epileptic

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episode was imminent. Defendants have submitted a medical opinion which asserts that

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missing a single dose of Keppra would be highly unlikely to cause a seizure. See Doc. No.

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59–3. However, such evidence is irrelevant to this Court’s inquiry into Melton’s subjective

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state of mind because there is no evidence in the record to suggest Melton was aware of

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such a medical opinion at the time she refused Plaintiff his medication. Accordingly, the

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Court finds a triable issue of fact concerning both the subjective and objective elements of

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Plaintiff’s deliberate indifference claim against Melton.

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ii. Causation

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In order for a prisoner to succeed on a constitutional tort claim, in addition to the

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specific elements of his § 1983 claim—here, a serious medical need and deliberate

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indifference towards it—he must also establish duty, breach of duty, causation, and

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damages. Valladares v. Hubbard, No. CV 07-0441-R PJW, 2011 WL 1456167, at *2 (C.D.

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Cal. Feb. 18, 2011), report and recommendation adopted, No. CV 07-0441-R PJW, 2011

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WL 1429609 (C.D. Cal. Apr. 13, 2011) (citing Grossart v. Dinaso, 758 F.2d 1221, 1236

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(7th Cir.1985) (Posner, J., dissenting) (“[C]ausation is as necessary in a constitutional-tort

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case as in an ordinary tort case.”)). The Ninth Circuit has cautioned that “[c]ausation is

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generally a question of fact for the jury, unless the proof is insufficient to raise a reasonable

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inference that the act complained of was the proximate cause of the injury.” Prosser v.

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Crystal Viking F/V, 940 F.2d 1535 (9th Cir. 1991) (citing Lies v. Farrell Lines, Inc., 641

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F.2d 765, 770 (9th Cir.1981)).

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Defendants argue that the expert opinion of Dr. Bennett Feinberg, M.D. (“Dr.

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Feinberg”) forecloses any possibility that Melton’s refusal of one dose of Keppra caused

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Plaintiff’s alleged seizure. See Doc. No. 104, pg. 4. In his declaration Dr. Feinberg opines

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that it “is not possible to say to a reasonable degree of medical certainty that missing a

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single dose of Keppra on July 22, 2014 could have caused a seizure hours later that night,

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particularly given Plaintiff’s history of noncompliance in taking his Keppra medi[c]ation.”

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Doc. No. 59 – 3, ¶ 16. Dr. Feinberg further states that, “is my opinion that it is highly

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unlikely that missing a single dose of Keppra would cause a seizure in the manner Plaintiff

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alleges.” Id.

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First, the Ninth Circuit has previously explained that plaintiffs who have already

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demonstrated a triable issue of fact as to whether prison officials exposed them to a

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substantial risk of harm, and who actually suffered precisely the type of harm that was

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foreseen, will also typically be able to demonstrate a triable issue of fact as to causation.
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Lemire, 726 F.3d at 1080–81 (citing White v. Roper, 901 F.2d 1501, 1505 (9th Cir.1990)).

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That is clearly the case here. Plaintiff has demonstrated a triable issue of fact that Melton

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exposed him to a higher risk of seizure by refusing him his epileptic medicine, and he

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suffered a seizure several hours later. Secondly, all evidence and inferences must be

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construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809

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F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from

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disputed facts that the judge is required to resolve in favor of the nonmoving party. Id.

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Here, based on the evidence presented a reasonable inference could be made that Plaintiff

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is aware of the symptoms that precede a seizure, and can accurately predict when he will

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have a seizure if he fails to receive his medicine. While Dr. Feinberg’s opinion certainly

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casts doubt about such an ability, the Court must view the facts in the light most favorable

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to Plaintiff, the non-moving party. Of course, the “facts” viewed in this light may not be

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the facts ultimately found by the jury. Regardless, Defendants’ objection that Plaintiff did

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not present sufficient evidence to demonstrate that Melton’s refusal of prescribed medicine

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was the direct and proximate cause of Plaintiff’s alleged injury is OVERRULED.

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CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:

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1. The findings and conclusions of the magistrate judge presented

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in the report and recommendation are ADOPTED as amended;

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2. Defendants’ objections are SUSTAINED in part and
OVERRULED in part, as set forth above;
3. Defendants’ Motion for Summary Judgment [Doc. No. 59] is

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DENIED as to Plaintiff’s Eighth Amendment claim against

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Melton;

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a. Defendants’ Motion for Summary Judgment is

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GRANTED in all other respects.

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IT IS SO ORDERED.

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DATED: September 25, 2018

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_________________________________
JOHN A. HOUSTON
United States District Judge

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