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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Case No.: 15-cv-2069-JAH-MDD Plaintiff, 12 13 v. 14 ORDER: MELTON, et al, 15 (1) ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AS AMENDED; Defendants. 16 17 (2) SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ OBJECTIONS; 18 19 (3)GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 20 21 22 23 24 INTRODUCTION 25 Pending before the Court is H. Melton, J. Chau M.D., M. Glynn, S. Roberts, M.D., 26 and J. Lewis’ (collectively “Defendants”) Motion for Summary Judgment. [Doc. No. 59]. 27 The Honorable Clinton E. Averitte, United States Magistrate Judge, issued a report and 28 recommendation (“Report”) recommending the Court grant in part and deny in part 1 15-cv-2069-JAH-MDD 1 Defendants’ Motion for Summary Judgment. See Doc. No. 103. After careful consideration 2 of the pleadings, and for the reasons set forth below, this Court OVERRULES in part 3 and SUSTAINS in part Defendants’ objections, ADOPTS the magistrate judge’s Report 4 as amended, and GRANTS in part and DENIES in part Defendants’ motion for summary 5 judgment. BACKGROUND1 6 7 Plaintiff, a state prisoner proceeding pro se, originally filed a complaint pursuant to 8 42 U.S.C. § 1983 on September 16, 2015. Doc. No. 1. Following this Court’s order 9 dismissing the complaint with leave to amend for failure to state a claim, Plaintiff filed a 10 First Amended Complaint (“FAC”) on May 25, 2016, alleging Defendants violated his 11 Eighth Amendment rights, the American with Disabilities Act (“ADA”), and his procedural 12 due process. See Doc. No. 12. On September 1, 2017, Defendants filed this Motion for 13 Summary Judgment. Doc. No. 59. On August 23, 2018, the Honorable Clinton E. Averitte, 14 United States Magistrate Judge, issued a report and recommendation (“Report”) 15 recommending the Court deny Defendants’ motion for summary judgment as to the Eighth 16 Amendment deliberate indifference claim against Melton, and grant Defendants’ motion 17 as to all other claims. See Doc. No. 103. Plaintiff filed no objections. Defendants’ filed 18 timely objections to the Report. See Doc. No. 104. 19 DISCUSSION 20 I. Legal Standard 21 The district court’s role in reviewing a magistrate judge’s report and 22 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the court “shall 23 make a de novo determination of those portions of the report . . . to which objection is 24 made,” and “may accept, reject, or modify, in whole or in part, the findings or 25 26 27 28 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. 1 2 15-cv-2069-JAH-MDD 1 recommendations made by the magistrate [judge].” Id. The party objecting to the 2 magistrate judge’s findings and recommendation bears the responsibility of specifically 3 setting forth which of the magistrate judge’s findings the party contests. See Fed. R. Civ. 4 P. 72(b). It is well-settled, under Rule 72(b) of the Federal Rules of Civil Procedure, that a 5 district court may adopt those parts of a magistrate judge’s report to which no specific 6 objection is made, provided they are not clearly erroneous. See Thomas v. Arn, 474 U.S. 7 140, 153-55 (1985). 8 II. 9 Analysis a. Magistrate Judge’s Recommendation 10 The magistrate judge recommended that this Court grant in part and deny in part 11 Plaintiff’s Motion for Summary Judgment. See Doc. No. 103. The magistrate judge found 12 that a reasonable fact finder could conclude that Melton was deliberately indifferent to 13 Plaintiff’s serious medical needs when she withheld his epilepsy medicine on July 22, 14 2014. Id. In addition, the magistrate judge determined that Melton is not entitled to 15 qualified immunity because the “refusal of prescribed epilepsy medication can be a 16 violation of a clearly established constitutional right . . . .” Id. (citing Jones v. Faulkner 17 Cty., 609 F. App'x 898, 900 (8th Cir. 2015)). The magistrate judge held that Defendants 18 Chau, Roberts, Glynn, and Lewis were entitled to summary judgment as to Plaintiff’s 19 Eighth Amendment deliberate indifference claims because they were protected by qualified 20 immunity. Id. In terms of Plaintiff’s ADA claims, the magistrate judge found that Plaintiff 21 failed to provide sufficient evidence to show that he was “denied the benefits of [a] program 22 solely and intentionally” because of a disability.” As such, the Report recommends 23 granting Defendants’ summary judgment as to Plaintiff’s ADA claims. Id. Finally, the 24 magistrate judge finds that there was no violation of procedural due process, and summary 25 judgment should be granted to Defendants as to Plaintiff’s due process claim. Id. 26 This Court may adopt the magistrate judge’s findings and conclusions presented in 27 the report that were not objected to so long as they are not clearly erroneous. See Thomas, 28 474 U.S. at 153. This Court’s careful de novo review, as to the portions of the Report not 3 15-cv-2069-JAH-MDD 1 specifically objected to, confirms that the magistrate judge presented a cogent analysis and, 2 thus, finds the magistrate judge’s findings and conclusions are not clearly erroneous. 3 Accordingly, this Court ADOPTS in full all portions of the magistrate judge’s Report 4 where no specific objection was raised. 5 b. Defendants’ Objections 6 Defendants object to the magistrate judge’s recommendation to deny summary 7 judgment as to Plaintiff’s Eighth Amendment deliberate indifference claim against Melton. 8 See Doc. No. 104. Defendants argue that the magistrate judge’s report erred in two 9 respects. First, Defendants argue that Plaintiff did not present sufficient evidence to 10 demonstrate that Melton’s refusal of prescribed medicine was the direct and proximate 11 cause of Plaintiff’s alleged injury. Id., pgs. 3–5. Second, Defendants contend that there is 12 no triable issue of fact as to the objective or subjective elements of Plaintiff’s deliberate 13 indifference claim against Melton. Id., pgs. 5–8. For reasons discussed below, the Court 14 will first analyze the latter. 15 i. Objective and Subjective Elements of Deliberate Indifference Claim 16 The “deliberate indifference” standard involves an objective and a subjective prong. 17 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer v. 18 Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). In 19 applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s 20 civil rights have been abridged, “the indifference to his medical needs must be substantial. 21 Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of 22 action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (citing Estelle, 23 429 U.S. at 105-06). Even gross negligence is insufficient to establish deliberate 24 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th 25 Cir.1990). The second prong involves the subjective component. The prison official must 26 act with a “sufficiently culpable state of mind,” which entails more than mere negligence, 27 but less than conduct undertaken for the very purpose of causing harm. Farmer, 511 U.S. 28 4 15-cv-2069-JAH-MDD 1 at 837. A prison official does not act in a deliberately indifferent manner unless the official 2 “knows of and disregards an excessive risk to inmate health or safety.” Id. 3 1. Objective Element 4 Defendants agree with the general proposition advanced in the magistrate judge’s 5 report that “epilepsy is a serious medical need.” Doc. No. 104, pg. 6. However, Defendants 6 contend that Plaintiff has presented no evidence that “every single dose of anti-seizure 7 medicine amounts to a serious medical need.” Id. Furthermore, Defendants argues that it 8 was improper for the magistrate judge to consider Plaintiff’s previous missed doses 9 because the claim arises solely from the single dose that Melton refused him. Id., pg. 7. 10 Defendants have conflated the objective element with the subjective element. To 11 satisfy the objective element in a deliberate indifference claim Plaintiff need only show 12 that he has a “serious medical need.” See Escobar v. Smith, No. 2:12-CV-0773 GEB DAD, 13 2013 WL 6389034, at *3 (E.D. Cal. Dec. 6, 2013) (citing Farmer, 511 U.S. at 834) (“By 14 establishing the existence of a serious medical need, a prisoner satisfies the objective 15 requirement for proving an Eighth Amendment violation.”). The Ninth Circuit has held 16 that a “serious medical need” is one that has been diagnosed by a physician as mandating 17 treatment or that a reasonable doctor or patient would find important and worthy of 18 comment or treatment. See, e.g., Wood v. Housewright, 900 F.2d 1332, 1337–41 (9th 19 Cir.1990) (citing cases); Hunt v. Dental Dept., 865 F.2d 198, 200–01 (9th Cir.1989). There 20 is no dispute that Plaintiff was an epileptic, and was prescribed medication to treat his 21 condition. See Doc. No. 59–3. The Court finds that a reasonable juror could conclude that 22 plaintiff’s epilepsy constituted an objectively serious medical need. 23 2. Subjective Element 24 Defendants argue that the magistrate judge incorrectly infers that Melton “had 25 knowledge that the dose amounted to a serious need and that she nonetheless refused to 26 provide him with it.” Doc. No. 104, pg. 7. Defendants argue there is no evidence in the 27 record to show that Melton was the individual responsible for reviewing and filling out 28 Plaintiff’s Medication Administration Record (“MAR”). Id. Defendants explain that nurses 5 15-cv-2069-JAH-MDD 1 responsible for administering Plaintiff’s medicine are identified on the MAR for the month 2 of July and Melton’s name or initials do not appear on the sheet. Id. Defendants argue that 3 this lack of evidence contradicts the magistrate judge’s inference that Melton was required 4 to fill out the MAR and therefore would have been aware of Plaintiff’s numerous missed 5 doses. Id. Defendants argue that the only evidence submitted by Plaintiff that Defendant 6 Melton was even the nurse providing medicine on July 22, 2014 was his sworn testimony. 7 Id. In his testimony, Plaintiff declared that he informed Melton that he “really needed [his 8 epilepsy medicine] . . . because I felt [] dizziness, weakness, which [are] usually signs for 9 a seizure coming up.” Doc. No. 59 – 2, pgs. 8–9. Defendants contend this sworn statement 10 is insufficient to raise a genuine issue of material fact because it is so inconsistent with the 11 other evidence in the record. See Doc. No. 104, pg. 8 (citing Scott v. Harris, 550 U.S. 372, 12 380 (2007)). 13 As stated above, in order to satisfy the subjective component of deliberate 14 indifference, the inmate must show that prison officials “kn[e]w [ ] of and disregard[ed]” 15 the substantial risk of harm, but the officials need not have intended any harm to befall the 16 inmate; “it is enough that the official acted or failed to act despite his knowledge of a 17 substantial risk of serious harm.” Farmer, 511 U.S. at 837, 842. The Ninth Circuit has held 18 that this inquiry is extremely “fact-intensive and typically should not be resolved at the 19 summary judgment stage.” Lemire v. California Dep't of Corr. & Rehab., 726 F.3d 1062, 20 1078 (9th Cir. 2013) (citing Farmer, 511 U.S. at 842) (“Whether a prison official had the 21 requisite knowledge of a substantial risk is a question of fact subject to demonstration in 22 the usual ways, including inference from circumstantial evidence, and a factfinder may 23 conclude that a prison official knew of a substantial risk from the very fact that the risk 24 was obvious.”). 25 Here, Plaintiff’s testimony was that on July 22, 2014 he informed Melton of his 26 symptoms, and that these symptoms typically proceed an impending seizure. See Doc. No. 27 59–2, pgs. 8–9. Plaintiff further alleges that Melton refused to provide him with his 28 prescribed epilepsy medication because he was using a temporary paper identification 6 15-cv-2069-JAH-MDD 1 instead of the proper “plastic ID.” Id. at pg. 11. In the early morning hours of July 23, 2014, 2 Plaintiff alleges that he had a seizure, which caused bumps and cuts to his head and severe 3 pain to his head and body. See Doc. No. 12, pg. 6. Based on this evidence, the magistrate 4 judge found a triable issue of fact as to whether Melton “knew of and disregarded” the 5 substantial risk of harm to Plaintiff by refusing his epilepsy medication. In addition, the 6 magistrate judge specifically found that Melton was “considered to have notice of the 7 missed doses during the relevant period” because of an “absence of evidence to the 8 contrary.” Doc. No. 103, pgs. 3–4. This Court disagrees with the magistrate judge’s finding 9 that Melton was aware of Plaintiff’s prior missed doses. The evidence of record is that 10 Melton was not identified on the MARS for the month of July, and therefore, the only 11 reasonable inference is that she was not the individual responsible for reviewing and filling 12 out Plaintiff’s MARS. See Doc. No. 59–3, ex. 4. Defendants’ objection as to that particular 13 magistrate judge finding is SUSTAINED. 14 However, there is evidence, in the form of Plaintiff’s deposition testimony, to 15 support a reasonable inference that Melton was the individual dispersing medication on 16 July 22, 2014. See Doc. No. 59–2, pgs. 8–9. As the magistrate judge noted, Defendants 17 have submitted no evidence suggesting Melton was not the pill line nurse on the date 18 alleged. Furthermore, Plaintiff’s testimony is that he informed Melton that he was 19 experiencing pre-seizure symptoms, and that he “really needed [his epilepsy medication].” 20 Id. The Court finds that, even if Melton was unaware of Plaintiff’s previous missed doses, 21 a reasonable jury could determine that Melton was cognizant of the substantial risk of harm 22 to Plaintiff by refusing him his epilepsy medication after she was informed that an epileptic 23 episode was imminent. Defendants have submitted a medical opinion which asserts that 24 missing a single dose of Keppra would be highly unlikely to cause a seizure. See Doc. No. 25 59–3. However, such evidence is irrelevant to this Court’s inquiry into Melton’s subjective 26 state of mind because there is no evidence in the record to suggest Melton was aware of 27 such a medical opinion at the time she refused Plaintiff his medication. Accordingly, the 28 7 15-cv-2069-JAH-MDD 1 Court finds a triable issue of fact concerning both the subjective and objective elements of 2 Plaintiff’s deliberate indifference claim against Melton. 3 ii. Causation 4 In order for a prisoner to succeed on a constitutional tort claim, in addition to the 5 specific elements of his § 1983 claim—here, a serious medical need and deliberate 6 indifference towards it—he must also establish duty, breach of duty, causation, and 7 damages. Valladares v. Hubbard, No. CV 07-0441-R PJW, 2011 WL 1456167, at *2 (C.D. 8 Cal. Feb. 18, 2011), report and recommendation adopted, No. CV 07-0441-R PJW, 2011 9 WL 1429609 (C.D. Cal. Apr. 13, 2011) (citing Grossart v. Dinaso, 758 F.2d 1221, 1236 10 (7th Cir.1985) (Posner, J., dissenting) (“[C]ausation is as necessary in a constitutional-tort 11 case as in an ordinary tort case.”)). The Ninth Circuit has cautioned that “[c]ausation is 12 generally a question of fact for the jury, unless the proof is insufficient to raise a reasonable 13 inference that the act complained of was the proximate cause of the injury.” Prosser v. 14 Crystal Viking F/V, 940 F.2d 1535 (9th Cir. 1991) (citing Lies v. Farrell Lines, Inc., 641 15 F.2d 765, 770 (9th Cir.1981)). 16 Defendants argue that the expert opinion of Dr. Bennett Feinberg, M.D. (“Dr. 17 Feinberg”) forecloses any possibility that Melton’s refusal of one dose of Keppra caused 18 Plaintiff’s alleged seizure. See Doc. No. 104, pg. 4. In his declaration Dr. Feinberg opines 19 that it “is not possible to say to a reasonable degree of medical certainty that missing a 20 single dose of Keppra on July 22, 2014 could have caused a seizure hours later that night, 21 particularly given Plaintiff’s history of noncompliance in taking his Keppra medi[c]ation.” 22 Doc. No. 59 – 3, ¶ 16. Dr. Feinberg further states that, “is my opinion that it is highly 23 unlikely that missing a single dose of Keppra would cause a seizure in the manner Plaintiff 24 alleges.” Id. 25 First, the Ninth Circuit has previously explained that plaintiffs who have already 26 demonstrated a triable issue of fact as to whether prison officials exposed them to a 27 substantial risk of harm, and who actually suffered precisely the type of harm that was 28 foreseen, will also typically be able to demonstrate a triable issue of fact as to causation. 8 15-cv-2069-JAH-MDD 1 Lemire, 726 F.3d at 1080–81 (citing White v. Roper, 901 F.2d 1501, 1505 (9th Cir.1990)). 2 That is clearly the case here. Plaintiff has demonstrated a triable issue of fact that Melton 3 exposed him to a higher risk of seizure by refusing him his epileptic medicine, and he 4 suffered a seizure several hours later. Secondly, all evidence and inferences must be 5 construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809 6 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from 7 disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. 8 Here, based on the evidence presented a reasonable inference could be made that Plaintiff 9 is aware of the symptoms that precede a seizure, and can accurately predict when he will 10 have a seizure if he fails to receive his medicine. While Dr. Feinberg’s opinion certainly 11 casts doubt about such an ability, the Court must view the facts in the light most favorable 12 to Plaintiff, the non-moving party. Of course, the “facts” viewed in this light may not be 13 the facts ultimately found by the jury. Regardless, Defendants’ objection that Plaintiff did 14 not present sufficient evidence to demonstrate that Melton’s refusal of prescribed medicine 15 was the direct and proximate cause of Plaintiff’s alleged injury is OVERRULED. 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 9 15-cv-2069-JAH-MDD 1 2 CONCLUSION AND ORDER Based on the foregoing, IT IS HEREBY ORDERED that: 3 1. The findings and conclusions of the magistrate judge presented 4 in the report and recommendation are ADOPTED as amended; 5 6 7 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 8 DENIED as to Plaintiff’s Eighth Amendment claim against 9 Melton; 10 a. Defendants’ Motion for Summary Judgment is 11 GRANTED in all other respects. 12 IT IS SO ORDERED. 13 DATED: September 25, 2018 14 15 16 _________________________________ JOHN A. HOUSTON United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 10 15-cv-2069-JAH-MDD

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