(PC) Quiroz v. California Department of Corrections and Rehabilitation, et al, No. 1:2006cv01426 - Document 41 (E.D. Cal. 2010)

Court Description: ORDER Adopting Findings and Recommendations in Part 35 ; ORDER Denying Plaintiff's Motions to Strike Defendants' Amended Declarations 36 , 39 , signed by Judge Oliver W. Wanger on 9/16/2010. (Verduzco, M)
Download PDF
(PC) Quiroz v. California Department of Corrections and Rehabilitation, et al Doc. 41 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CARLOS QUIROZ, 9 1:06-CV-01426-OWW-DLB PC Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART 10 v. (DOCS. 26, 35, 37, 40) 11 12 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., ORDER DENYING PLAINTIFF’S MOTIONS TO STRIKE DEFENDANTS’ AMENDED DECLARATIONS (DOCS. 36, 39) 13 Defendants. 14 / 15 16 Plaintiff Carlos Quiroz (“Plaintiff”) is a California state 17 prisoner proceeding pro se in this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 complaint, filed October 16, 2006, against Defendants Adams, Wu, 20 McGuinness, 21 Amendment. On November 19, 2009, Defendants filed a motion for 22 summary judgment. 23 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 24 Local Rule 302. Shen, This action is proceeding on Plaintiff’s and Attygalla (Doc. 26.) for violation of the Eighth The matter was referred to a United 25 On August 18, 2010, the Magistrate Judge filed a Findings and 26 Recommendations herein which was served on the parties and which 27 contained notice to the parties that any objection to the Findings 28 and Recommendations was to be filed within twenty-one days. 1 Dockets.Justia.com 1 Defendants filed an Objection to the Findings and Recommendations 2 on August 23, 2010. 3 the Findings and Recommendations on September 7, 2010. (Doc. 40.) 4 Plaintiff 5 declarations on August 20 and August 25 of 2010. 6 Defendants filed an opposition to the motion to strike on August 7 23, 2010. (Doc. 38.) 8 9 also (Doc. 37.) filed motions Plaintiff filed an Objection to to strike Defendants’ amended (Docs. 36, 39.) In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having 10 carefully reviewed the entire file, the Court finds the Findings 11 and Recommendations to be supported by the record and by proper 12 analysis in part as stated herein, and provides the following 13 additional analysis. 14 motion to strike. 15 I. 16 The Court will first address Plaintiff’s Plaintiff’s Motions To Strike Plaintiff contends that Defendants’ amended declarations, 17 submitted on August 2, 2010, should be stricken. 18 the Magistrate Judge provided Defendants with the opportunity to 19 submit amended declarations in support of their motion for summary 20 judgment. 21 been signed pursuant to 28 U.S.C. § 1746, and thus they were not 22 competent evidence for purposes of a summary judgment motion. 23 Plaintiff objected to the Magistrate Judge’s order. 24 subsequently submitted their amended declarations on August 2, 25 2010. (Doc. 32.) On July 20, 2010 Defendants’ original declarations had not Defendants 26 Plaintiff contends that Defendants’ amended declarations are 27 not signed pursuant to Federal Rule of Civil Procedure 11(a) and 28 56(e). (Docs. 36, 39.) Plaintiff further contends that it is 2 1 highly 2 Defendants’ counsel in this process. 3 prejudicial to Plaintiff that the Court “assisted” (Id.) Defendants contend that the declarations are properly signed. 4 (Doc. 38.) Having examined the court docket, the Court find that 5 the declarations were filed with electronic signatures, with a 6 document of original signatures attached to Defendants’ objection. 7 This is a permitted method of signature under the Local Rules of 8 this Court. L.R. 131(f), (g). 9 As to the Court permitting Defendants to submit amended 10 declarations, the Court has the inherent power to manage its 11 docket. 12 2008)(citation omitted). It is not the preference of this Court to 13 adjudicate motions on procedural defects if the defects can be 14 easily cured. 15 to cure the same deficiencies in his declarations if they had been 16 present. 17 II. United States v. W. R. Grace, 526 F.3d 499, 509 (9th Cir. Plaintiff would have been afforded the opportunity Thus, Plaintiff’s motions to strike are denied. Plaintiff’s Objections1 18 Plaintiff contends that the Magistrate Judge erred in finding 19 that Plaintiff failed to dispute Defendants’ undisputed facts 20 regarding 21 experienced. (Pl.’s Obj. 3-4.) Plaintiff contends that Defendants 22 failed to prescribe three medications for treatment of Plaintiff’s 23 glaucoma, as recommended by an eye specialist, and failed to 24 schedule timely follow-ups with the specialists. 25 to demonstrate deliberate indifference on the part of Defendants. the high intraocular eye pressure which Plaintiff Plaintiff fails 26 27 28 1 Plaintiff’s objections contain the same arguments raised in Plaintiff’s motion to strike Defendants’ amended declarations. Those arguments are resolved as stated herein. 3 1 Failure to follow a specialists’ recommendation is not sufficient 2 by itself to demonstrate deliberate indifference. 3 Chung, 391 F.3d 1051, 1058 (9th Cir. 2006) (difference of opinion 4 between 5 prisoner shows that treatment chosen was medically unacceptable 6 under the circumstances and chosen in conscious disregard of an 7 excessive 8 evidence that they did provide some treatment for Plaintiff’s 9 glaucoma. 10 medical risk professionals to is prisoner’s deliberately health). See Toguchi v. indifferent Defendants if presented Plaintiff contends that Defendants’ declarations are comprised 11 of inadmissible hearsay. 12 demonstrate how or why Defendants’ declarations are inadmissible 13 hearsay. 14 (Pl.’s Obj. 4.) Plaintiff fails to Fed. R. Evid. 801(c), 802, 803. Plaintiff’s dispute with the expertise of Defendants’ expert 15 witnesses 16 sufficiently 17 submitting curriculum vitae in support. 18 Curriculum 19 Defendants reviewed Plaintiff’s medical record prior to reaching 20 their opinion. 21 Evid. 702 (witnesses qualified by knowledge, skill, experience, 22 training, or education may testify to an opinion if based upon 23 sufficient data and reliable application of reliable methods); Id. 24 703 (opinion testimony by expert witnesses is admissible). 25 is unpersuasive. demonstrated Vitae; Kaye The the Decl., Defendants’ basis Ex. of remaining CV-A, objections their witnesses expertise by (Taylor Decl., Ex. CV-A, Their testimony is thus not Plaintiff’s expert are Curriculum hearsay. composed Vitae.) See Fed. R. of lengthy 26 citation to case law, and legal conclusions. 27 unavailing. 28 applicable law in this matter. Accepting all material facts in the 4 The Magistrate Judge Such objections are properly considered the 1 light most favorable to the non-moving party, the Court finds that 2 Plaintiff presents insufficient evidence to demonstrate that any 3 Defendants had knowledge of and disregarded a serious risk to 4 Plaintiff’s 5 Plaintiff’s objections are overruled. 6 III. Defendants’ Objections health regarding his eye issues. Accordingly, 7 Defendants contend that there is no medical evidence that 8 Defendants Shen, Wu, Attygalla, or McGuinness failed to treat or 9 address Plaintiff’s kidney stones. Defendants also contend that 10 Plaintiff’s declarations are inadmissible hearsay, and that he 11 cannot testify as to appropriate medical treatments or medical 12 diagnoses. 13 Plaintiff can testify as to what treatment he did or did not 14 receive, as he is a percipient witness to such matters.2 While Plaintiff may not testify as a medical expert, 15 Plaintiff received treatment on several occasions beginning in 16 June 7, 2004, when he underwent multiple procedures to attempt to 17 treat Plaintiff’s kidney stones. 18 11:10-12.) 19 lithothripsy by Dr. Dwivedi on ten occasions from June 2004 to July 20 2005. 21 with Dr. Roger Low in January 2006, who then performed a uteroscopy 22 stone removal, with placement of stent. 23 April 2006, Plaintiff underwent stent removal. (Id. at 11:17-18.) 24 Plaintiff also received treatment for his kidney complaints by Dr. Plaintiff received (Findings and Recommendations stent placement and shock wave (Id. at 11:12-14.) Plaintiff later received a consultation (Id. at 11:14-17.) 25 26 27 28 2 Plaintiff’s “self-serving” statements in his declarations are not hearsay. The statements go towards Defendants’ knowledge that Plaintiff informed them of his kidney issues, not to whether Plaintiff actually has kidney issues. Declarations in support of one party are generally selfserving, which does not affect their use. 5 In 1 Low from 2006 through 2009. 2 The time frame in which Plaintiff received treatment for his 3 kidney issues occurred during his incarceration at California 4 Substance Treatment Facility (“SATF”), and thus within the time 5 frame 6 construing all facts in the light most favorable to the non-moving 7 party, the Court finds that Defendants Wu and McGuinness are 8 entitled 9 Plaintiff’s kidney stone issues were not disregarded; rather, he of treatment to by summary Defendants judgment. Wu The and McGuinness. evidence indicates Even that 10 received several instances of treatment. The effectiveness of the 11 treatment is not controlling. 12 Defendants knew of and disregarded an excessive risk to Plaintiff’s 13 health. The evidence presented indicates he received treatment for 14 his kidney stone issues at SATF. 15 requested urine test within twenty-fours, special diet, or double 16 mattress chrono as recommended by a urology specialist is not 17 sufficient to demonstrate that Defendants acted with deliberate 18 indifference. 19 McGuinness should receive summary judgment as to Plaintiff’s kidney 20 stone claims. The material question is whether Defendants’ failure to provide a Toguchi,391 F.3d at 1058. Thus, Defendants Wu and 21 Defendants present a declaration from their expert witness 22 stating that there was no medical evidence Defendants Shen or 23 Attygalla failed to treat Plaintiff’s kidney stones. 24 Plaintiff submits his own declaration which indicates that he 25 complained to Defendant Attygalla about his lack of treatment for 26 his kidney stones, but received none. 27 Attygalla ¶¶ 6-8.) 28 about his kidney stones, requesting a referral to a urologist and 6 However, (Pl.’s Decl. In Opp’n Def. Plaintiff made a complaint to Defendant Shen 1 a lower bunk chrono, and also received no treatment. (Pl.’s Decl. 2 In Opp’n Def. Shen ¶¶ 6-9.) 3 to the pain he suffered and the treatment he received, if any.3 Plaintiff is competent to testify as 4 Construing the material facts in light most favorable to the 5 non-moving party, the Court finds there remains a triable issue of 6 material fact as to whether Defendants Attygalla and Shen were 7 deliberately 8 regarding treatment of his kidney stones at Wasco State Prison and 9 Lancaster State Prison. indifferent to Plaintiff’s serious medical needs At the summary judgment stage, the Court 10 will not weigh the credibility of Defendants’ expert witness 11 against Plaintiff’s credibility. 12 IV. Conclusion And Order 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. 15 16 25, 2010, are DENIED; 2. 17 18 Plaintiff’s motions to strike, filed August 20 and August The Findings and Recommendations, filed August 18, 2010, is adopted in part as stated herein; 3. Defendants’ motion for summary judgment, filed November 19 19, 2009, is GRANTED as to Defendants Adams, McGuinnes, 20 and Wu for all claims, and as to Defendants Attygalla and 21 Shen for Plaintiff’s claims regarding medical treatment 22 of his eye issues; 23 4. 24 Defendants’ motion is DENIED as to Defendants Attygalla and Shen for Plaintiff’s claims regarding medical 25 26 27 28 3 Defendants also contend that Plaintiff received treatment in May 2003 to remove some of Plaintiff’s kidney stones. (Pl.’s Opp’n, Ex. M, Doc. 29.) This was one instance of treatment for Plaintiff’s kidney issues, and occurred prior to his incarceration at any state correctional institution mentioned herein. That evidence is thus not persuasive for the issue of deliberate indifference by Defendants in this action. 7 1 2 3 4 treatment of his kidney stones; and /// 5. The action is referred to the Magistrate Judge for further scheduling and proceedings. 5 IT IS SO ORDERED. 6 Dated: September 16, 2010 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8