Castaneda v. The United States of America California et al, No. 2:2007cv07241 - Document 260 (C.D. Cal. 2011)
Court Description: ORDER DENYING Defendants' Motion for Summary Judgment 240 by Judge Dean D. Pregerson: For the reasons set forth above, the court DENIES the Motion for Summary Judgment. (See Order for Details). (sch)
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Castaneda v. The United States of America California et al Doc. 260 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FRANCISCO CASTANEDA, 12 13 14 15 16 17 18 19 20 21 22 23 Plaintiff, v. THE UNITED STATES OF AMERICA, CALIFORNIA, GEORGE MOLINAR, in his individual capacity, CHRIS HENNEFORD, in his individual capacity, JEFF BRINKLEY, in his individual capacity, GENE MIGLIACCIO, in his individual capacity, TIMOTHY SHACK, M.D., in his individual capacity, ESTHER HUI, M.D., in her individual capacity, STEPHEN GONSALVES, in his individual capacity, CLAUDIA MAZUR, in her individual capacity, DANIEL HUNTING, M.D. , Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 07-07241 DDP (JCx) ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Motion filed on 8/11/2010] 24 25 Presently before the court is Defendant Robert Mekemson (“Dr. 26 Mekemson”) and Susan Pasha (“Nurse Pasha”)’s Motion for Summary 27 Judgment.1 After reviewing the parties’ moving papers and hearing 28 1 This order refers to Dr. Mekemson and Nurse Pasha, the (continued...) Dockets.Justia.com 1 argument, the court denies the motion and adopts the following 2 order. 3 4 5 I. Background The facts of this case, involving allegations of 6 constitutional violations under the Eighth Amendment, are known to 7 the parties and are more fully described in this court’s previous 8 orders. 9 necessary. 10 Accordingly, the court will only explain the facts here as In December 2005, Francisco Castaneda (“Castaneda”) was 11 incarcerated at the North Kern State Prison. 12 screening on December 8, 2005, Dr. Andrew Leong found a lesion on 13 Castaneda’s penis. 14 urologist and obtain a circumcision. 15 observed discolorations on Castaneda’s penis, a constriction of the 16 foreskin, and a foul smell. Dr. Leong filled out a “Physician 17 Request for Services form.” On the form, Dr. Leong wrote “rule out 18 squamous cell [carcinoma]” and requested that Castaneda consult 19 with a urologist. 20 2 weeks” and marked the request as “Routine.” 21 During a medical Dr. Leong recommended that Castaneda see a On December 27, Dr. Leong Dr. Leong requested the consultation “ASAP – 1 - Roughly two weeks later, on January 11, 2006, Dr. Mekemson, in 22 his capacity as Chief Medical Officer of the North Kern State 23 Prison, reviewed Dr. Leong’s request. 24 Castaneda was scheduled to be transferred to a different facility 25 the following day, January 12. Dr. Mekemson observed that Dr. Mekemson believed that 26 27 1 28 (...continued) moving parties here, collectively as “Defendants.” 2 1 Castaneda would receive a medical screening at the new facility, 2 and therefore denied the request for a urology consultation. 3 Nurse Pasha examined Castaneda on February 7, 2006. 4 Pasha observed a raised, white-yellow lesion on Castaneda’s penis. 5 Nurse Pasha filled out a Physician Request for Services Form. 6 the form, Nurse Pasha wrote, “Rule out squamous cell [carcinoma].” 7 Nurse Pasha requested a urology consultation, marked the request 8 “Urgent,” and noted that Castaneda should make a follow-up visit in 9 one month. Nurse On One month later, on March 7, Castaneda had not yet 10 received a urology consultation. 11 follow up after one month. 12 consultation on March 29, 2006, but was released into federal 13 custody on March 26, 2006, three days before his urology 14 appointment. 15 February 2008. Nurse Pasha again planned to Castaneda was scheduled for a urology Castaneda died of aggressive penile cancer in 16 Plaintiffs allege that Dr. Mekemson and Nurse Pasha were 17 deliberately indifferent to Castaneda’s medical needs, in violation 18 of the Eighth Amendment. 19 claim under California State Law. 20 move for summary judgment. 21 II. Plaintiffs also bring a wrongful death Dr. Mekemson and Nurse Pasha now Legal Standard 22 A motion for summary judgment must be granted when “the 23 pleadings, depositions, answers to interrogatories, and admissions 24 on file, together with the affidavits, if any, show that there is 25 no genuine issue as to any material fact and that the moving party 26 is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 27 56(c). 28 of informing the court of the basis for its motion and of A party seeking summary judgment bears the initial burden 3 1 identifying those portions of the pleadings and discovery responses 2 that demonstrate the absence of a genuine issue of material fact. 3 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 4 Where the moving party will have the burden of proof on an 5 issue at trial, the movant must affirmatively demonstrate that no 6 reasonable trier of fact could find other than for the moving 7 party. 8 burden of proof, however, the movant can prevail merely by pointing 9 out that there is an absence of evidence to support the nonmoving On an issue as to which the nonmoving party will have the 10 party’s case. 11 burden, the non-moving party must set forth, by affidavit or as 12 otherwise provided in Rule 56, “specific facts showing that 13 there is a genuine issue for trial.” Anderson v. Liberty Lobby, 14 Inc., 477 U.S. 242, 250 (1986). 15 See id. If the moving party meets its initial It is not the Court's task “to scour the record in search of a 16 genuine issue of triable fact.” 17 1278 (9th Cir. 1996). Counsel have an obligation to lay out their 18 support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d 1026, 19 1031 (9th Cir. 2001). The Court "need not examine the entire file 20 for evidence establishing a genuine issue of fact, where the 21 evidence is not set forth in the opposition papers with adequate 22 references so that it could conveniently be found." 23 III. Discussion Keenan v. Allan, 91 F.3d 1275, Id. 24 A. 8th Amendment Claim 25 “[D]eliberate indifference to serious medical needs of 26 prisoners constitutes the unnecessary and wanton infliction of pain 27 proscribed by the Eighth Amendment.” 28 97, 104 (1976) (internal quotation and citation omitted). 4 Estelle v. Gamble, 429 U.S. Mere 1 malpractice, however, is not enough to constitute an Eighth 2 Amendment violation. 3 prisoner must allege acts or omissions sufficiently harmful to 4 evidence deliberate indifference to serious medical needs.” 5 106. 6 “serious medical need, indifference to that need, and harm caused 7 by that indifference.” 8 (9th Cir. 2010). 9 subjectively aware of a serious medical need and “purposefully “In order to state a cognizable claim, a Id. at A plaintiff alleging deliberate indifference must show a Conn v. City of Reno, 591 F.3d 1081, 1095 Indifference requires that defendants were 10 acted or failed to adequately respond” to that need. 11 96. 12 Id. at 1095- Defendants argue that their conduct does not, as a matter of 13 law, give rise to a claim of deliberate indifference. 14 however, must construe the facts in the light most favorable to the 15 plaintiff. 16 8th Amendment claim. 17 This court, The evidence, so construed, is adequate to support an The parties do not dispute that Castaneda had a serious 18 medical need. 19 aware of that need. 20 lesion and constriction of the foreskin, that cancer was a possible 21 cause of those symptoms, and that Castaneda needed a urology 22 consultation “ASAP.” 23 based on his assumption that Castaneda would be screened at another 24 facility, was an “adequate” response to Castaneda’s medical need is 25 a question best resolved at trial. 26 There is evidence that Defendants were subjectively Dr. Mekemson knew that Castaneda had a penile Whether Dr. Mekemson’s denial of treatment, There is also evidence that Nurse Pasha was aware of 27 Castaneda’s need. 28 assessment, but also made a similar assessment herself, in which She not only was aware of Dr. Leong’s earlier 5 1 she raised the possibility of cancer and suggested an “Urgent” 2 urology consultation. 3 Nurse Pasha was required to ensure that Castaneda received the 4 needed treatment, and that she failed to do so. 5 failure was innocent, negligent, or deliberately indifferent is not 6 an appropriate question for summary judgment. 7 Plaintiffs have presented evidence that Whether such The court also rejects Defendants’ claims, abandoned in their 8 reply materials, to qualified immunity. 9 that deliberate indifference to a prisoner’s serious medical needs It is well-established 10 constitutes cruel and unusual punishment and violates the 8th 11 Amendment. 12 Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (“To establish 13 unconstitutional treatment of a medical condition . . . a prisoner 14 must show deliberate indifference to a ‘serious’ medical need.”). 15 16 17 B. See, e.g., Estelle, 429 U.S. at 104, Doty v. County of Wrongful Death Claim 1. Causation Defendants point to expert testimony that Castaneda would have 18 died of penile cancer regardless of Defendants’ actions. 19 Defendants argue, Plaintiffs have not satisfied the causation 20 requirement of a wrongful death claim. 21 Declaration of Dr. Robert Kessler in Opposition to Defendants 22 Mekemson and Pasha’s Motion for Summary Judgment. 23 states that, but for Dr. Mekemson and Nurse Pasha’s actions and 24 failures to act, Castaneda would not have died of penile cancer. 25 Defendants have objected to Dr. Kessler’s declaration on grounds 26 that Dr. Kessler did not provide sufficient reasoning to support 27 his opinion. 28 6 Thus, This argument ignores the Dr. Kessler 1 This court, however, granted Defendants’ earlier motion to 2 continue oral argument in this matter, and explicitly granted 3 Defendants permission to depose Dr. Kessler. 4 filed any further objections to Dr. Kessler’s declaration, amended 5 their memoranda, or filed supplemental declarations in response to 6 Dr. Kessler’s statements. 7 statements are therefore overruled. 8 summary judgment and supports his motion with expert declarations 9 that his conduct fell within the community standard of care, he is Defendants have not Defendants’ objections to Dr. Kessler’s “When a defendant moves for 10 entitled to summary judgment unless the plaintiff comes forward 11 with conflicting expert evidence.” 12 838 F.2d 390, 392 (9th Cir. 1988) (emphasis added). 13 conflict between expert opinions shall be resolved by the finder of 14 fact at trial. 15 16 2. Hutchinson v. United States, Here, the Subject Matter Jurisdiction This court also rejects Defendants’ contention that this court 17 lacks subject matter jurisdiction over Plaintiffs’ wrongful death 18 claim. 19 employee for injury resulting from an act or omission in the scope 20 of public employment, the plaintiff must first file a complaint 21 against the employing public entity. 22 Cal.App.3d 1032, 1034, 201 Cal.Rptr. 715 (Ct. App. 1984) (citing 23 Cal. Gov’t Code §§ 911.2, 945.4, 950, 950.2.) 24 acknowledge that Castaneda filed the requisite government claim, 25 but argue that Plaintiffs, his heirs, failed to do so within the 26 required time period. 27 proceedings against the public entity, however, the State deterred 28 Plaintiffs from timely filing a claim. Before a plaintiff can bring an action against a public Olden v. Hatchell, 154 Defendants As the trial court observed during state 7 The State did not object to 1 amended pleadings adding the heirs as Plaintiffs, and engaged in 2 extensive mediation with Plaintiff-heirs subsequent to Castaneda’s 3 death. 4 heirs failed to timely file a government claim. 5 Defendants are estopped from asserting that Castaneda’s Defendants argue that this court is without power to apply 6 equitable principles because this court lacks subject matter 7 jurisdiction in the first instance. 8 California Government Code § 946.6 allows courts, in some 9 instances, to grant plaintiffs permission to file late government This argument is misplaced. 10 claims. 11 338-39, 61 Cal. Rptr 920 (Ct. App. 1967). 12 permission to file a late claim, a plaintiff must show, among other 13 things, that the claim was made within one year of the accrual of 14 the cause of action. 15 limit “is a jurisdictional prerequisite to a claim relief 16 petition.” 17 702, 713, 269 Cal.Rptr. 605 (Ct. App. 1990) (emphasis added). 18 See Hom v. Chico Unified Sch. Dist., 245 Cal.App.3d 225, To obtain judicial Cal. Gov’t Code § 946.6(c). This one-year Santee v. Santa Clara Office of Educ., 220 Cal.App.3d Plaintiffs have not, however, requested judicial leave to file 19 a late claim under Cal. Gov’t Code § 946.6. 20 the power to grant such relief is of no moment. 21 Government Code § 946.6 does not use the word “jurisdiction.” 22 Courts are “reluctant to read limitations on jurisdiction into a 23 statutory scheme that does not clearly divest a court of 24 jurisdiction.” 25 1050, 1055 (9th Cir. 2010) (citing Union Pacific R.R. v. Bhd. of 26 Locomotive Eng’r and Trainmen Gen. Comm. of Adjustment, Cent. 27 Region, 130 S.Ct. 584, 596 (2009) (Cautioning that not all 28 mandatory prescriptions are jurisdictional)). Whether this court has California Adkinson v. Comm’r of Internal Revenue, 592 F.3d 8 This court therefore 1 rejects Defendants’ argument that limitations on the court’s 2 ability to grant Plaintiffs leave to file a late government claim 3 has the broader effect of depriving the court of subject matter 4 jurisdiction in the first instance. 5 IV. 6 7 Conclusion For the reasons set forth above, the court DENIES the Motion for Summary Judgment. 8 9 IT IS SO ORDERED. 10 11 12 13 Dated: January 7, 2011 DEAN D. PREGERSON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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