(PC) Farley v. Capot et al, No. 1:2006cv01760 - Document 81 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Defendant Tate's 72 Motion for Summary Judgment be Granted signed by Magistrate Judge Michael J. Seng on 10/30/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 12/5/2011. (Sant Agata, S)
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(PC) Farley v. Capot et al Doc. 81 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 LEONARD FARLEY , 8 Plaintiff, 9 10 CASE NO. FINDINGS AND RECOMMENDATION THAT MOTION FOR SUMMARY JUDGMENT BE GRANTED v. DOCTOR E. CAPOT, et al., 11 (ECF No. 72) Defendant. 12 1:06-cv-1760-LJO-MJS (PC) OBJECTIONS DUE WITHIN THIRTY DAYS / 13 Plaintiff Leonard Farley (“Plaintiff”) is a former state prisoner proceeding pro se and 14 15 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 16 Plaintiff’s Amended Complaint was screened and found to state a cognizable claim 17 against Defendants Capot and Tate. (Order, ECF No. 17.) Defendants filed a Motion to 18 Dismiss (ECF No. 22), that was granted on March 25, 2009 (ECF No. 33). On appeal, the 19 Ninth Circuit found that the claim against Defendant Capot was properly dismissed, but that 20 the district court erred in dismissing the claim against Defendant Tate. (Mem., ECF No. 21 39.) 22 Before the Court is Defendant Tate’s Motion for Summary Judgment. (ECF No. 72.) 23 Plaintiff has filed an Opposition to the Motion, and Defendant Tate has filed a Reply. (ECF 24 Nos. 77 & 79.) The Motion for Summary Judgment is now ready for ruling. 25 I. FACTS 26 The facts, viewed in the light most favorable to Plaintiff, are as follows: 27 At all times relevant to this action, Plaintiff was in the custody of the California 28 Department of Corrections and Rehabilitation (“CDCR”) at the California Correctional Dockets.Justia.com 1 Institution (“CCI”) in Tehachapi, California. Also at all times relevant to this action, 2 Defendant Tate was employed by CDCR as the Chief Medical Officer (“CMO”) at CCI. 3 On September 5, 2004, Plaintiff met with Doctor Capot,1 and complained of 4 abdominal pain. The pain was sharp and stabbing and prevented Plaintiff from sitting, 5 standing, bending, eating, and using the restroom. Doctor Capot found nothing wrong with 6 Plaintiff. On October 5, 2004, Plaintiff saw Doctor Capot again. Rather than prescribe 7 medication or surgery, Doctor Capot ordered an ultrasound. 8 additional treatment. 9 10 He did not order any Plaintiff made several other attempts to obtain treatment for his abdominal pain by CCI’s medical staff. 11 On January 21, 2005, Plaintiff was seen by a Doctor Hirsh who found an abnormal 12 growth on the left side of Plaintiff’s stomach and ordered a CAT-scan. Then, on January 13 25, 2005, Doctor Hirsh submitted a Physical Request for Services for a surgery consult for 14 Plaintiff. On March 1, 2005, Doctor Capot submitted another Physical Request for 15 Services in which he sought an exploratory laparotomy and endoscopy for Plaintiff. 16 A few days later, on March 10, 2005, Plaintiff was referred to an outside physician 17 at Mercy Hospital in Bakersfield, California. Doctor Rodriguez, a physician at Mercy 18 Hospital, did a surgery consultation. On April 11, 2005, Doctor Capot directed Plaintiff to 19 be transported to the emergency room at Mercy Hospital. On April 12, 2005, Doctor 20 Rodriguez did a surgical consultation, and the next day he performed surgery to remove 21 Plaintiff’s abdominal mass. 22 There is a factual dispute as to whether the January 25 and March 1, 2005 Physical 23 Requests for Services were seen by Defendant Tate and denied by Defendant Tate. 24 Plaintiff alleges that Defendant Tate reviewed and denied the requests. Defendant Tate 25 alleges that he never reviewed or denied the requests, and consequently was not aware 26 of Plaintiff’s condition. 27 28 1 Doctor Capot is no longer a defendant in this action. -2- This is the only pertinent disputed fact in this matter. 1 2 II. LEGAL STANDARD 3 A. Summary Judgment 4 Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is appropriate 5 when it is demonstrated that there exists no genuine issue as to any material fact, and that 6 the moving party is entitled to judgment as a matter of law. Summary judgment must be 7 entered, “after adequate time for discovery and upon motion, against a party who fails to 8 make a showing sufficient to establish the existence of an element essential to that party's 9 case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. 10 Catrett, 477 U.S. 317, 322 (1986). The “party seeking summary judgment bears the initial 11 responsibility of informing the district court of the basis for its motion, and identifying those 12 portions of the ‘pleadings, depositions, answers to interrogatories, and admissions on file, 13 together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine 14 issue of material fact.” Celotex, 477 U.S. at 323 (quoting Rule 56(c) of the Federal Rules 15 of Civil Procedure). 16 If the moving party meets its initial responsibility, the burden then shifts to the 17 opposing party to establish that a genuine issue as to any material fact actually does exist. 18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting 19 to establish the existence of this factual dispute, the opposing party may not rely upon the 20 denials of its pleadings, but is required to tender evidence of specific facts in the form of 21 affidavits, and/or admissible discovery material, in support of its contention that the dispute 22 exists. Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. 23 The parties bear the burden of supporting their motions and oppositions with the 24 papers they wish the Court to consider and/or by specifically referencing any other portions 25 of the record they wish the Court to consider. Carmen v. San Francisco Unified School 26 Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record 27 for triable issues of fact. Id. 28 -3- 1 B. Eighth Amendment - Inadequate Medical Care 2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 3 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 4 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The 5 two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious medical 6 need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further 7 significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s 8 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting 9 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992)). 10 Deliberate indifference is shown by “a purposeful act or failure to respond to a 11 prisoner’s pain or possible medical need, and harm caused by the indifference.” Id. (citing 12 McGuckin, 974 F.2d at 1060); see Farmer v. Brennan, 511 U.S. 825, 837–42 (1994). 13 Deliberate indifference may be manifested “when prison officials deny, delay or 14 intentionally interfere with medical treatment, or it may be shown by the way in which prison 15 physicians provide medical care.” 16 quotations omitted)). Where the claim involves a delay in the receipt of treatment or care, 17 the claim is not cognizable unless the delay led to further harm. McGuckin, 974 F.2d at 18 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 19 1985)). 20 III. Id. (citing McGuckin, 974 F.2d at 1060 (internal ANALYSIS 21 Plaintiff claims Defendant Tate violated Plaintiff’s Eighth Amendment rights by 22 providing inadequate medical care. Plaintiff has submitted evidence sufficient to satisfy 23 the first element of an inadequate medical care claim by establishing, without dispute, that 24 he had a serious medical need. He has not submitted evidence to satisfy the second 25 requirement, i.e., that Defendant Tate was aware of his medical need and acted with 26 deliberate indifference. Plaintiff has failed to show that there is a genuine issue of material 27 fact on the issue of whether Defendant Tate was actually aware of and ignored Plaintiff’s 28 need for medical treatment. -4- 1 It is undisputed that Defendant Tate never treated Plaintiff and, in fact, never even 2 met him. Plaintiff’s claims that Defendant Tate was the CMO at CCI and as such was 3 required to and did review the Physical Requests for Services submitted by Plaintiff’s 4 doctors, and that he ignored or denied those requests. (Pl.’s Opp. at 6.) In support of this 5 claim, Plaintiff cites to Defendant Tate’s job description and argues that as CMO he is 6 responsible for ensuring that all inmates receive adequate medical care. (Pl.’s Opp. at 11.) 7 There is of course logic to Plaintiff’s claim in this regard, but that is insufficient to take it 8 beyond supposition or theory. Even the fact, if established, that Defendant Tate was 9 supposed to review such requests as part of his job duties does not supply the crucial 10 piece missing here, i.e., that Defendant Tate actually did review the requests. Absent 11 same, Plaintiff’s claim that Defendant Tate must have reviewed them because he was 12 supposed to does not rise beyond the level of speculation and can not be said to be 13 sufficient to prove that fact or create a genuine dispute over that fact. Matsushita, 475 U.S. 14 at 586 (in a motion for summary judgment, the opponent “must do more than simply show 15 that there is some metaphysical doubt as to the material facts”) (citations omitted). 16 Nothing on the written Requests for Services suggest that Defendant Tate saw and 17 acted on them. (Def.’s Mot. at Ex. 2, at 7 and 14.) There is no marking on either of them 18 to suggest it was reviewed, approved, authorized, or denied by Defendant Tate. Defendant 19 Tate states that “[i]n accordance with [his] routine and practice, had [he] denied [Doctor] 20 Hirsch’s request for a surgery consult for [Plaintiff], [he] would have circled the “DENIED” 21 option and signed the form.” (Tate Decl. at ¶ 25.) Similarly, he states that “[i]n accordance 22 with [his] routine and practice, had [he] denied [Doctor] Capot’s request for a GI consult 23 and endoscopy for [Plaintiff], [he] would have circled the “DENIED” option and signed the 24 form.” (Tate Decl. at ¶ 32.) As noted, there is no such marking on the requests. 25 Plaintiff appears to argue that Defendant Tate did see the requests but had a 26 system in place where he would refrain from marking the written documents so he could 27 deny responsibility for injury resulting from the denial or service. (Pl.’s Opp at 6.) Plaintiff 28 provides no evidence in support of such a claim. It is just a theory, and as such does not -5- 1 rise to the level of competent evidence on which Plaintiff or this Court could rely to deny 2 summary judgment. 3 Plaintiff admits that his only other basis for believing that Defendant Tate rejected 4 the request for surgery is that, according to Plaintiff, Doctor Rodriguez told him that “the 5 CMO” delayed his surgery. (Farley Dep. 100:5-101:23, April 29, 2011.) Plaintiff has not 6 submitted any evidence that would explain this statement, much less take it outside the 7 realm of inadmissable hearsay. 8 Beyond the foregoing, Plaintiff provides no evidence to support a claim that 9 Defendant Tate actually reviewed or was even aware of the requests at issue here and 10 chose to deny them. Plaintiff has not submitted any declarations from CCI personnel or 11 anyone else to support his conclusions. 12 Defendant Tate denies that he was aware of Plaintiff’s condition and he denies that 13 he took any action to approve or deny care for Plaintiff as alleged. (Tate Decl. at ¶¶ 18, 14 23, 26, 30, 32, 36, 38, 39.) 15 Thus, the Court is left with Defendant Tate’s sworn denial of knowledge of Plaintiff’s 16 condition as the only competent evidence. Plaintiff's inability to establish that there is a 17 genuine dispute of material fact on this issue precludes reliance on it to defeat summary 18 judgment. Absence of evidence of such a fact is fatal to the showing of deliberate 19 indifference necessary to show an Eighth Amendment violation. See Farmer, 511 U.S. at 20 837 (deliberate indifference requires that a defendant “be aware of facts from which the 21 inference could be drawn that a substantial risk of serious harm exists, and he must also 22 draw the inference”). Accordingly, the Court recommends that Defendant Tate's Motion 23 for Summary Judgment against Defendant Tate be GRANTED. 24 IV. CONCLUSION 25 Accordingly, for the reasons set forth above, it is HEREBY RECOMMENDED that 26 Defendant Tate’s July 20, 2011 Motion for Summary Judgment (ECF No. 72) be 27 GRANTED. 28 These Findings and Recommendation are submitted to the United States District -6- 1 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). 2 Within thirty days after being served with these findings and recommendations, any party 3 may file written objections with the court and serve a copy on all parties. Such a document 4 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 5 Any reply to the objections shall be served and filed within ten days after service of the 6 objections. The parties are advised that failure to file objections within the specified time 7 may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 8 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: ci4d6 October 30, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-
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