(PC) Reyes v. Flores et al, No. 1:2016cv00586 - Document 48 (E.D. Cal. 2018)
Court Description: FINDINGS and RECOMMENDATIONS recommending that (1) Defendant LVN M. Flores is not entitled to judgment as a matter of law and his Motion for Summary Judgment, filed on December 20, 2017 (Doc. 35), should be DENIED;(2) Defendant John Doe RN should be DISMISSED with prejudice based on Plaintiffs failure to prosecute;(3) the Clerk should be directed to rename this action Reyes v. Flores and to terminate John Doe RN from the docket; (4) the parties should be ordered to participate in a settlement conference and to indicate whether they will require court supervision ; referred to Judge Drozd,signed by Magistrate Judge Jennifer L. Thurston on 8/16/18. Objections to F&R due 14-Day Deadline (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ABEL P. REYES, 12 Case No. 1:16-cv-00586-DAD-JLT (PC) Plaintiff, Defendants. 13 OBJECTIONS DUE WITHIN 14 DAYS v. 14 FINDINGS AND RECOMMENDATION TO DENY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND TO DISMISS JOHN DOE R.N. FOR PLAINTIFF’S FAILURE TO PROSECUTE (Docs. 35, 39) FLORES, et al., 15 16 17 I. 18 Procedural History Plaintiff claims that, in deliberate indifference to his serious medical needs, Defendant M. 19 Flores LVN, knowingly denied him medical treatment when he began experiencing pain and 20 bleeding following surgery for an enlarged prostate. (Doc. 1, 10-12.) Defendant contends that he 21 was not deliberately indifferent to Plaintiff’s medical needs and that, even if Plaintiff needed 22 further medical care, ordering it was beyond his job duties, entitling him to summary judgment. 23 (Doc. 35.) For the reasons discussed below, the Court finds that Plaintiff’s evidence established 24 genuine issues of material fact and Defendant’s motion should be DENIED. 25 II. 26 27 Plaintiff’s Allegations Plaintiff alleges that, following prostate (“TURP”) surgery, he was discharged to the ACH at CSP-Cor on January 23, 2014 with a prescription for medications and directions from the 28 1 1 surgeon for Plaintiff to report to a physician or emergency room if his symptoms returned or 2 worsened. (Doc. 1, p. 16-17.) 3 Plaintiff next alleges that, on January 26, 2014, at approximately 7:00 a.m., he was 4 pushed in a wheelchair to the clinic to pick up his morning medications at which time he 5 informed Defendant that he was in severe pain in his bladder and kidneys and that he was leaking 6 blood from his penis. (Id., p. 18.) Defendant responded that it was not a medical emergency, that 7 the red on his boxers was not blood but Kool-Aid, and told him to submit a health care services 8 request form to be seen. (Id.) 9 Plaintiff was wheeled back to his building where he and the person pushing his wheelchair 10 informed C/O Huewe and the control booth officer that he was in pain and that medical staff were 11 not responsive, to which the control booth officer indicated that he would let Plaintiff go back to 12 medical at noon. (Id.) Around 11:30 a.m., the assistant wheeled Plaintiff back to the clinic where 13 he was again seen by Defendant and told him of his continuing pain as well as that he was unable 14 to urinate, had thick blood clots come out of his penis, and that he had just had surgery and 15 needed medical attention. (Id., p. 19.) Defendant ignored Plaintiff’s pleas. (Id.) LVN Hamilton 16 was also present for this exchange but did nothing. (Id.) 17 When Plaintiff and the assistant pushing his wheelchair arrived back at Plaintiff’s building 18 they again relayed what happened to the control booth officer and C/O Huewe who asked if 19 Plaintiff wanted them to hit the alarm to which Plaintiff responded in the affirmative. (Id.) LVN 20 Hamilton and Defendant responded to the alarm and Defendant again stated that it was Kool-Aid, 21 not blood on Plaintiff’s boxers and told custody staff that Plaintiff could go back to his cell and 22 wait to see the nurse the next day. (Id., pp. 19-20.) C/O Huewe escorted Plaintiff back to his cell 23 and Plaintiff told him that he was in severe pain, dripping blood clots from his penis, and was 24 unable to urinate, but C/O Huewe responded that medical had already seen Plaintiff, so there was 25 nothing more he could do. (Id., p. 20.) 26 On third watch, Plaintiff reported his problems to other floor staff officers (not named as 27 defendants) who let him call his mother; she called the hospital where Plaintiff’s surgery was 28 performed. (Id., p. 21.) At approximately 3:45 p.m., Plaintiff was seen at the clinic by John Doe 2 1 RN, whom Plaintiff told of his surgery, severe pain, and that Plaintiff had used a catheter trying to 2 release his urine, but only blood clots came out. (Id.) John Doe RN looked and told Plaintiff he 3 did not see any blood on his penis and told Plaintiff to see a nurse the next day. (Id.) When 4 Plaintiff protested and asked John Doe RN “Why not do something now?” John Doe RN simply 5 responded, “I’m done.” (Id.) When he returned to his cell, Plaintiff again called his mother and 6 eventually a nurse from the hospital called CSP-Cor and told medical staff that Plaintiff was 7 having a medical emergency which resulted in his return to the hospital at approximately 10:00 8 that evening. (Id., pp. 21-22.) 9 III. 10 Summary Judgment Standard Summary judgment is appropriate where there is “no genuine dispute as to any material 11 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 12 Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine only if there 13 is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is 14 material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty 15 Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 16 (9th Cir. 1987). The Court determines only whether there is a genuine issue for trial and in doing 17 so, it must liberally construe Plaintiff’s filings because he is a pro se prisoner. Thomas v. Ponder, 18 611 F3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted). 19 In addition, Rule 56 allows a court to grant summary adjudication, or partial summary 20 judgment, when there is no genuine issue of material fact as to a particular claim or portion of that 21 claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 22 1981) (“Rule 56 authorizes a summary adjudication that will often fall short of a final 23 determination, even of a single claim . . .”) (internal quotation marks and citation omitted). The 24 standards that apply on a motion for summary judgment and a motion for summary adjudication 25 are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200 26 (S.D. Cal. 1998). 27 28 Each party’s position must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) 3 1 showing that the materials cited do not establish the presence or absence of a genuine dispute or 2 that the opposing party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 3 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not 4 cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San 5 Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo 6 County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 7 Defendants do not bear the burden of proof at trial and, in moving for summary judgment, 8 they need only prove an absence of evidence to support Plaintiff’s case. In re Oracle Corp. 9 Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 10 317, 323 (1986)). If Defendants meet their initial burden, the burden then shifts to Plaintiff “to 11 designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle 12 Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to “show 13 more than the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, 14 Inc., 477 U.S. 242, 252 (1986)). An issue of fact is genuine only if there is sufficient evidence for 15 a reasonable fact finder to find for the non-moving party, while a fact is material if it “might 16 affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248; Wool v. 17 Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). 18 In judging the evidence at the summary judgment stage, the Court may not make 19 credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless Inc., 509 20 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all 21 inferences in the light most favorable to the nonmoving party and determine whether a genuine 22 issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. 23 City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), 24 cert. denied, 132 S.Ct. 1566 (2012). Inferences, however, are not drawn out of the air; the 25 nonmoving party must produce a factual predicate from which the inference may reasonably be 26 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), 27 aff’d, 810 F.2d 898 (9th Cir. 1987). 28 /// 4 1 IV. Discussion and Analysis 2 A. 3 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 4 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 5 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 6 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (2014) (quoting Jett v. Penner, 7 439 F.3d 1091, 1096 (9th Cir.2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th 8 Cir.1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 9 Cir.1997) (en banc)). 10 Legal Standard Under the Eighth Amendment To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 11 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 12 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 13 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 14 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 15 (quotation marks omitted)). 16 As to the first prong, indications of a serious medical need “include the existence of an 17 injury that a reasonable doctor or patient would find important and worthy of comment or 18 treatment; the presence of a medical condition that significantly affects an individual’s daily 19 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 20 1066 (9th Cir. 2014) (citation and internal quotation marks omitted); accord Wilhelm, 680 F.3d at 21 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). Neither side appears to dispute that 22 Plaintiff’s condition after TURP surgery qualifies as a serious medical need. 23 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 24 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 25 safety.’ ” Farmer v. Brennan, 511 U.S. 825, 835 (1994) (quoting Whitley, 475 U.S. at 319). 26 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 27 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 28 Id., at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 5 1 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 2 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 3 substantial; however, such would provide additional support for the inmate’s claim that the 4 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096, citing McGuckin, 974 5 F.2d at 1060. 6 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 7 (9th Cir.2004). “Under this standard, the prison official must not only ‘be aware of the facts from 8 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 9 ‘must also draw the inference.’ ” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 10 official should have been aware of the risk, but was not, then the official has not violated the 11 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, 12 Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). 13 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 14 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see also Jett, 439 F.3d at 1096; 15 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 16 based on delay in treatment must show delay led to further injury). The needless suffering of pain 17 may, in some circumstances, be sufficient to demonstrate further harm, Wilhelm, 680 F.3d at 18 1122; Clement v. Gomez, 298 F.3d 898, 904 (9th Cir.2002) ) (on a claim of prolonged exposure to 19 pepper-spray fumes found “a serious medical need is present whenever the ‘failure to treat a 20 prisoner’s condition could result in further significant injury or the “unnecessary and wanton 21 infliction of pain,” ’ ” (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (quoting 22 Estelle, 429 U.S. at 104)). Defendant’s Undisputed Statements of Fact1 23 B. 24 Defendant’s evidence shows that in January of 2014, Plaintiff was incarcerated at 25 California State Prison – Corcoran. (Defendant’s Separate Statement of Undisputed Material 26 Facts (“DUF”) 1.) Following a history of treatment for various urinary symptoms, Plaintiff was 27 28 1 Disputes of fact shown by Plaintiff’s evidence are delineated in the discussion of his opposition. 6 1 admitted into the Delano Regional Medical Center for TURP surgery on his prostate on January 2 21, 2014. (DUF 2.) Plaintiff was discharged and returned to CSP-Cor on January 23, 2014. 3 (DUF 3.) 4 On January 26, 2014 at approximately 7:00 a.m., Plaintiff was pushed in his wheelchair 5 to the C-window of the 3-B Clinic to obtain his morning medications from Defendant. (DUF 6 4.) According to Plaintiff, Defendant “doesn’t examine you, he just only passes out medication.” 7 (DUF 5.) Defendant contends that Plaintiff refused to take his medications on January 26, 2014. 8 (DUF 8.) Plaintiff told Defendant that he was in severe pain and that he had a medical 9 emergency. According to Plaintiff, Defendant instructed Plaintiff to complete a Health Care 10 Services Request Form, CDC Form 7362. (DUF 6.) Shortly thereafter, Plaintiff went to another 11 window at the 3-B Clinic and spoke with another nurse who also advised Plaintiff to complete a 12 7362 form and drop it in the box. (DUF 7.) 13 At approximately 10:00 a.m., Plaintiff returned to his cell and completed a 7362 form. 14 However, he did not put it in the box at that time. (DUF 9.) Plaintiff returned to the C-window at 15 approximately 11:30 a.m. for his medications. (DUF 10.) According to Plaintiff, when he again 16 tried to speak with Defendant about his symptoms, Defendant advised Plaintiff that he already 17 gave Plaintiff a 7362 form to complete. (DUF 11.) 18 Plaintiff returned to his cell where he advised custodial staff of his alleged medical 19 emergency and asked that they “hit the alarm.” (DUF 12.) Nurse Hamilton and Defendant 20 responded to the alarm. Defendant took Plaintiff’s vital signs and attempted to assess Plaintiff’s 21 condition. The chart notes that Plaintiff was able to walk without difficulty or grimacing, and that 22 Plaintiff was not showing any pain symptoms. (DUF 13.) Nurse Hamilton and Defendant spent 23 approximately 15-30 minutes with Plaintiff, assessing his condition. (DUF 14.) 24 Pursuant to protocols, Defendant called the Triage and Treatment Area (TTA) and spoke 25 with a registered nurse (RN) regarding Plaintiff’s condition. The RN then makes the decision as 26 to whether the inmate needs to be examined. In this case, the RN advised Defendant that Plaintiff 27 did not need to be examined. The RN advised Defendant to give Plaintiff a 7362 form, so that he 28 could be examined the next day. (DUF 15.) 7 1 Licensed vocational nurses (LVN), such as Defendant, do not have the authority to decide 2 whether an inmate should be examined. That decision must be made by the RN. Defendant 3 never refused medical service to Plaintiff. Only the RNs and higher ranking medical staff have 4 the authority to make that decision. (DUF 16.) 5 Plaintiff returned to the 3-B clinic at approximately 3:45 p.m. Nurse John Doe examined 6 Plaintiff and concluded that he did not require emergency treatment. (DUF 17.) Later in the 7 evening on January 26, 2014, Dr. Julian Kim examined Plaintiff in the Acute Care Hospital at 8 California State Prison – Corcoran. The chart indicates that Plaintiff complained of bladder pain, 9 the inability to void, chest pain, and shortness of breath. Dr. Kim also noted that Plaintiff did not 10 appear to be in any acute physical distress. The chart also indicated that “history taking is nearly 11 impossible due to the patient’s extreme uncooperativeness.” Plaintiff was sent to the Mercy 12 Hospital Emergency Room due to the inability to adequately monitor Plaintiff’s cardiac 13 complaints or perform a full urological examination. (DUF 18.) 14 Plaintiff was examined by Dr. Noor Jaber at the Mercy Hospital Emergency Room. The 15 chart indicates that Plaintiff was in no acute distress. A Foley catheter was placed and Plaintiff 16 was admitted for further management and treatment. (DUF 19.) Plaintiff was discharged from 17 Mercy Hospital on January 29, 2014. The discharge report indicates that urine cultures were 18 negative. The report also indicates that Plaintiff was “very manipulative refusing medications, 19 and he is self-treating his issues as nothing can be offered.” (DUF 20.) Defendant’s Motion 20 C. 21 Defendant argues that his observations support the finding, he was not aware that Plaintiff 22 faced a substantial risk of serious harm. As noted in Plaintiff’s medical records, Plaintiff was not 23 showing signs or symptoms of acute distress or pain. (Doc. 35, p. 9; ref. DUF 13, 18, 19.) 24 Defendant argues that he first encountered Plaintiff while working at one of the windows in the 3- 25 B clinic where Defendant was distributing medication. At that time, neither Defendant nor the 26 unnamed nurse in another window believed that Plaintiff was facing a medical emergency. 27 28 Defendant next examined Plaintiff in his cell when responding to the alarm requested by Plaintiff. After taking Plaintiff’s vital signs and spending 15 to 30 minutes with Plaintiff, both 8 1 Defendant and Nurse Hamilton observed that Plaintiff could walk without difficulty or grimacing, 2 and that Plaintiff was not showing any pain symptoms. (Doc. 35, p. 9, ref. DUF 13, 14.) 3 Defendant argues that these observations are further supported by the reports prepared by 4 Dr. Julian Kim and Dr. Noor Jaber later the same day who noted that Plaintiff did not appear to be 5 in any acute distress. (Id., ref. DUF 18, 19.) Considering these independent observations, 6 Defendant argues that he had no reason to believe Plaintiff faced a substantial risk of serious 7 harm. Even if Defendant should have known Plaintiff face a substantial risk of serious harm, 8 Defendant contends he was not aware of such a risk and, as a result, cannot be held liable for 9 deliberate indifference. See Gibson, supra, 290 F.3d at 1188. 10 In any event, Defendant contends that as an LVN, he does not have the authority to decide 11 whether an inmate should be examined. That decision must be made by the RN. Pursuant to 12 protocols, Defendant called the TTA and spoke with an RN regarding Plaintiff’s condition. In 13 this case, the RN advised Defendant that Plaintiff did not need to be examined. The RN advised 14 Defendant to give the inmate a Health Care Services Request Form CDC 7362, so that he could 15 be examined the next day. (Doc. 35, p. 9, ref. DUF 15.) 16 Defendant also argues that a difference in opinion between medical professionals 17 concerning what medical care is appropriate does not amount to deliberate indifference. Colwell, 18 supra, 763 F.3d at 1068. Likewise, he correctly argues that a difference in medical opinion 19 between a prisoner-patient, especially one without any medical training, and a healthcare provider 20 in treatment options does not give rise to an Eighth Amendment claim. (Doc. 35, p. 10 (citing 21 Mayfield v. Craven, 433 F.2d 873, 874 (9th Cir. 1970); Shields v. Kunkle, 442 F.2d 409, 410 (9th 22 Cir. 1981)). 23 Defendant argues that Plaintiff’s allegations amount to nothing more than a disagreement 24 with Defendant and the RN who determined that Plaintiff’s condition did not constitute a medical 25 emergency, which was the conclusion reached by numerous other nurses at CSP-Cor on the date 26 in question. Likewise, Defendant contends that even when Plaintiff was examined at the 27 emergency room following his complaints of chest pain, the doctor noted that Plaintiff was in no 28 acute distress. As a result, Defendant argues Plaintiff cannot support a claim for deliberate 9 1 indifference against Defendant. (Doc. 35, p. 10.) 2 The Court finds that Defendant has met his burden to demonstrate the absence of a 3 genuine issue of material fact. The burden therefore shifts to Plaintiff to establish that a genuine 4 issue as to any material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 5 U.S. 574, 586 (1986). Plaintiff may not rely upon the mere allegations or denials of his 6 pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or 7 admissible discovery material, in support of his contention that the dispute exists. Fed. R. Civ. P. 8 56(e); Matsushita, 475 U.S. at 586 n.11; First Nat=l Bank, 391 U.S. at 289; Strong v. France, 474 9 F.2d 747, 749 (9th Cir. 1973). Plaintiff’s Opposition 10 D. 11 In his opposition, Plaintiff argues that, on January 26, 2014, Plaintiff’s post-surgical 12 condition constituted a serious medical need which he repeatedly brought to Defendant’s 13 attention. Despite both Plaintiff’s objective (bloodied underwear/shorts and blood dripping from 14 his penis) and subjective pain complaints, Defendant was deliberately indifferent to Plaintiff’s 15 condition. (Doc. 45.) 16 Plaintiff’s evidence shows that at approximately 7:00 a.m. on Sunday, January 26, 2014, 17 Plaintiff’s ADA assistant, IM Jonnie Quezada, pushed Plaintiff in a wheelchair to the C-window 18 to obtain Plaintiff’s morning medications. (Doc. 45, Plntf. Decl., ¶4.) Defendant attended the C- 19 window at that time. (Id.) The parties agree that this is the first encounter they had with each 20 other on January 26, 2014. Defendant’s evidence of this encounter merely indicates that he spoke 21 with Plaintiff and that Plaintiff declined to take his medications and signed a Refusal of 22 Examination and/or Treatment Form confirming his refusal. (Doc. 35-3, Def. Decl., ¶3.) 23 Plaintiff’s evidence to the contrary shows that, at that encounter, Plaintiff informed 24 Defendant that he had recently had surgery, that he was in severe pain and was 25 bleeding/discharging blood and had blood on his boxers. (Doc. 45, Plntf. Decl., ¶6.) Plaintiff 26 told Defendant he was having complications from surgery, had heavy bleeding and clots. (Id.) 27 Defendant told Plaintiff to fill out a 7362 form, that Plaintiff’s condition was not a medical 28 emergency, and that he could see the doctor the next day, Monday. (Id.) Defendant did not fill 10 1 out any documentation of this interaction. (Doc. 45, Plaintiff’s Disputed Material Facts and cited 2 supporting evidence, “PDF” 6.) 3 Plaintiff’s evidence also shows that, after the medication line ended that morning, the 4 ADA worker brought Plaintiff to Defendant’s window again. (PDF 7, 9.) Plaintiff pleaded with 5 Defendant and told Defendant that he was in pain and it hurt, to which Defendant responded that 6 he already gave Plaintiff a 7362 form to fill out. (Id.) When Plaintiff persisted, Defendant told 7 him there was no doctor or nurse available for him to call on Plaintiff’s behalf. (Id.) Plaintiff told 8 Defendant that there had to be at least an RN at the ACH 24/7 and that a doctor had to be 9 available to the RN, so all Defendant had to do was pick up the phone and let them know of 10 Plaintiff’s symptoms. (Id.) The ADA worker also told Defendant that Plaintiff had recently had 11 surgery, was in severe constant pain, leaking blood clots, unable to urinate, and that blood was 12 leaking onto Plaintiff’s boxers. (Id.) Defendant failed to respond to either Plaintiff or the ADA 13 worker’s imploring. (Id.) When Plaintiff showed Defendant his bloody boxers, Defendant came 14 out from behind the C-window to look at them and dismissed Plaintiff’s complaints saying, “Oh 15 that’s not blood, that’s Kool-Aid.” (Id.) 16 Furthermore, Plaintiff submits evidence to show that he did not sign the Refusal of 17 Examination and/or Treatment Form as Defendant contends. (PDF, #8.) Plaintiff states that he 18 did not sign that form and submits other documents which he acknowledges signing for signature 19 comparison purposes. (Id., Doc. 45, Exh. F.) While the signatures are similar, they are not 20 identical. Thus, a dispute of fact exists whether Plaintiff signed the Refusal of Examination 21 and/or Treatment Form, on January 26, 2014, as Defendant contends. 22 Plaintiff’s evidence also shows that after the two conversations at the C-window, when the 23 ADA worker pushed Plaintiff in his wheelchair back to his housing unit, Plaintiff and the ADA 24 worker told Officers Huewe and Alford that Defendant did not want to respond to Plaintiff’s 25 medical emergency. (PDF 9.) Officer Alford told them that he would let them go back to the 3B- 26 Clinic around noon. (Doc. 45, Quezada Decl., ¶6.) Thus, Plaintiff and the ADA worker returned 27 to the C-window of 3B-Clinic around 11:30 a.m. at which time Plaintiff again stressed his dire 28 condition to Defendant and asked to be sent to the ACH or to see a nurse or physician, but 11 1 Defendant just responded that he had already given Plaintiff a 7362 form and that Plaintiff could 2 see a physician the next day. (PDF 11.) When Plaintiff approached LVN Hamilton in the 3B- 3 Clinic about his circumstance, LVN Hamilton merely indicated he had already spoken to 4 Defendant, (id.), which, leniently construed, implies that the contents Defendant’s conversation 5 with LVN Hamilton caused the latter to assume Plaintiff’s symptoms were being addressed. 6 Plaintiff’s evidence also shows that when the ADA worker pushed Plaintiff back to his 7 building, they informed Officer Huewe and Alford about Plaintiff’s condition. (PDF 12.) Officer 8 Alford asked, “what do you want us to do, hit the alarm?” to which Plaintiff responded “yes.” 9 (Id.) Defendant and LVN Hamilton responded to the alarm. (PDF 13.) Plaintiff’s evidence 10 shows that upon arrival, Defendant stated to Plaintiff “So this is how you want to play this 11 game?” (Id.) Plaintiff responded that he needed to see a doctor or go back to the outside hospital 12 because he was in pain and it hurt, to which Defendant did not respond. (Plntf. Decl., ¶11.) 13 Defendant also again brushed off the blood on Plaintiff’s boxers as Kool-Aid. (Quezada Decl., 14 ¶8.) When the ADA worker returned Plaintiff to the housing unit after the exam, Officer Huewe 15 was standing by Plaintiff’s cell and they both saw blood leak from Plaintiff’s penis. (Id.) 16 Plaintiff does not recall, but does not dispute that Defendant took Plaintiff’s vital signs 17 during his exam after the alarm was sounded. (Plntf. Decl., 12.) However, a dispute exists 18 regarding Defendant’s findings from that exam. Defendant contends that he noted Plaintiff could 19 walk without difficulty or grimacing, and that he did not show any pain symptoms. (Def. Decl. 20 ¶4.) However, the 7362 form shows that Plaintiff stated, “I’m pissing big blood clots, and heavily 21 red blood,” and had pain in his lower back. (Doc. 35-3, Def. Decl. Exh., p. 7; Doc. 45, Plntf. Exh. 22 K, p. 104.) Under the objective findings, which Defendant apparently filled out, the form 23 reflects: 24 25 26 27 @ 1252, LVW Hamilton and [illegible] arrived to cell. I/M was sitting on edge of bed. I/M got up, when ask, walk to his w/c without difficulty or facial grimace. LVN Flores arrived approx. 1 min after the fact. Took V.S. as above, call2 I/M was not showing any pain symptoms, talking without hesitance. Sitting up in chair, Pt would bend over in chair when LVN would talk to him, get back up when not spoken to. Call RN [illegible] @ 1307, ACH aware of Pt. Told to tell I/M to put in paperwork and will see Monday. 28 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 (Id. (strike through word “call” in original).) Plaintiff presents evidence to contradict Defendant’s note that he would bend over in the chair when one of the LVN’s talked to him during this exam, but would get up when not spoken to, which Defendant suggest was done in an exaggerated effort to show pain. To the contrary, Plaintiff testified in his deposition that he was in a lot of pain at the time of this exam, that he was dizzy and bleeding and kneeled in pain. (Doc. 45, p. 110.) This creates a triable issue of fact whether Plaintiff was kneeling in pain, or just bending over in exaggeration during this exam. Defendant’s notes on the 7362 form raise questions. Notably, Defendant does not provide any explanation where he obtained the information that Plaintiff walked to his wheelchair “without difficulty or facial grimace” when he arrived about “1 minute after the fact.” (See Doc. 35-3, Def. Decl.) Regardless of whether Plaintiff was exhibiting observable pain symptoms, Defendant does not acknowledge Plaintiff’s complaints regarding bleeding and clotting or indicate whether he relayed this part of Plaintiff’s complaints to the RN that he called that day. (See Doc. 35-3, Def. Decl.) Defendant does not provide any explanation to find that Plaintiff’s complaint of “pissing big black clots and heavily red blood” should not equate to a serious medical condition given his recent TURP surgery. Further, Plaintiff correctly points out that the 7362 form detailing this encounter, indicates 18 19 Plaintiff’s pulse rate is noted at “217” but a “1” appears to have been drawn through the “2” in an attempt to reflect “117” instead of “217” -- the later, higher number, Plaintiff contends was his 20 pulse rate at that time. (Doc. 45, Plntf. Decl., ¶13; id., Exh. K, p. 104; & Doc. 35-3, Exh to Def. 21 Decl. p. 7.) Defendant did not address this apparent alteration/change of Plaintiff’s medical 22 record in his declaration, nor in any admissible evidence; nor did he file a reply to address 23 Plaintiff’s argument and evidence. 24 Neither party disputes that the exam on the afternoon of January 26, 2014, was the last 25 contact that Defendant had regarding Plaintiff’s condition. Subsequently, Plaintiff called his 26 mother and informed her of the above and she called the Delano Regional Medical Hospital 27 (where Plaintiff’s TURP surgery had been performed). (Plntf. Decl., ¶16.) Eventually, Nurse 28 13 1 Campbell from Delano Regional called CSP-Cor which resulted in Plaintiff being taken to the 2 ACH around 5:30 p.m. on January 26, 2014. (Id. ¶17.) Plaintiff’s evidence shows that, at the 3 ACH, a urinalysis showed blood in his urine with an abnormal finding of “LARGE” and 4 “TURBID” appearance. (Doc. 45, p. 122.) The ACH report reflects that while Plaintiff’s 5 abdomen was soft, his bladder was “palpable and tender to touch.” (Id., p. 125.) Exam noted 6 there was “fresh blood on the urethral meatus” and that Plaintiff was holding the catheterization 7 on [sic] his hand with fresh blood inside. It was an attempt to self-catheterization prior to 8 presentation.” (Id.) Plaintiff’s blood pressure was 149/90 and his pulse rate was 120. (Id.) The 9 assessment/plan noted “lots of blood on self-catheterization. Possible urinary retention secondary 10 to the accumulated blood clot in the bladder. Probably going to need emergent urological 11 evaluation including ultrasound of his bladder to relieve retention since the patient could not void 12 even using self-catheterization.” (Id.) The ACH record also noted that Plaintiff complained of 13 chest pain and had “elevated blood pressure with tachycardia,” that two doses of nitroglycerine 14 did not abate his chest pain, and Plaintiff “needed to be worked up especially in the setting of the 15 tachycardia” and that the ACH had “no capacity to do the telemetry monitoring or the cardio 16 workup as well as inability for urological consultation on an emergent basis.” (Id., pp. 125-26 17 (emphasis added).) 18 It is notable that the ACH physician found both Plaintiff’s urological and cardiological 19 conditions emergent, warranting transfer to a hospital, while Defendant did not find Plaintiff’s 20 condition to be2 significant enough to relay them to the RN, or if he did, he failed to note this on 21 the 7362 form or to detail this in his declaration. Plaintiff’s evidence also shows that at Mercy 22 Hospital’s emergency room, placing the Foley catheter resulted in “a lot of frank hematuria 23 appreciated” noted as “drained gross blood” and that Plaintiff’s pain and apparently his cardiac 24 25 26 27 28 2 Defendant noted Plaintiff’s blood-pressure as 148/82 and pulse rate at 217 or 117 on the 7362 form. At the ACH, he doctor noted his blood-pressure was 149/90 and pulse rate was 120 which, the doctor noted, was “elevated and tachycardia.” The doctor found this, combined with Plaintiff’s bleeding/clotting and inability to void, to be emergent such to warrant hospital transport, even though Plaintiff was noted not to appear to be in any acute distress. (Compare Doc. 35-5, p. 7 with Doc. 45, pp. 125-26.) Again, Defendant failed to explain that he relayed Plaintiff’s cardiac readings to the RN on January 26, 2014 or explain why he did not do so. 14 1 symptoms as well, after the Foley catheter was placed. Also, when he was discharged three days 2 later, his cardiac symptoms had resolved without further treatment and without pain medication. 3 (Doc. 45, pp. 131, 138.) 4 On the evidence submitted, a reasonable jury could find that Defendant merely relayed 5 statements such as contained in his declaration to the RN he called (i.e. that Plaintiff was able to 6 walk without difficulty grimacing, and that he was not showing any pain symptoms), and not 7 Plaintiff’s complaints and the rest of the findings noted on the 7362 form, which the physician at 8 the ACH found to require an emergent work-up and transport to a hospital. This being so, a 9 reasonable jury could find that, in not relaying Plaintiff’s complaints and all of the findings noted 10 on the 7362 form, Defendant was deliberately indifferent to Plaintiff’s serious medical condition. 11 Furthermore, volume 4 of Chapter 12 of the CDCR Health Care Medical Services Policies and 12 Procedures, demonstrates that Defendant had the ability to call an RN or physician despite that he 13 told the plaintiff that none was on duty when Plaintiff presented at the C-window complaining of 14 severe pain and bleeding. (Plntf. Decl. ¶15.) A reasonable jury could also find that any failure by 15 Defendant to call an RN when Plaintiff presented with his complaints at the C-window and to 16 relay all of Plaintiff’s symptoms and vitals when Defendant spoke with the RN during the exam 17 after the alarm was sounded, subjected Plaintiff to the unnecessary and wanton infliction of pain, 18 which escalated to include cardiac symptoms by the time Plaintiff was seen by the physician at 19 the ACH. Wilhelm, 680 F.3d at 1122. 20 Plaintiff also submits evidence that his inmate appeal determined that Defendant violated 21 the emergency medical response system policy. (Doc. 45, pp. 72-75; Plntf. Decl. ¶15.) In noting 22 this, the Court does not mean to suggest that violation of such policies and procedures without 23 more demonstrates that Defendant was deliberately indifferent to an inmate’s serious medical 24 need. However, it does support the Court’s conclusion that a jury could reasonably conclude in 25 the plaintiff’s favor. 26 Defendant contends it was beyond his job duties to order medical treatment for Plaintiff. 27 It is true that when resolving a claim under the Eighth Amendment against individual defendants, 28 causation must be resolved via “a very individualized approach which accounts for the duties, 15 1 discretion, and means of each defendant.” Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988) 2 citing with approval Williams v. Bennett, 689 F.2d 1370, 1384 (11th Cir. 1982) (“There can be no 3 duty, the breach of which is actionable, to do that which is beyond the power, authority, or means 4 of the charged party. One may be callously indifferent to the fate of prisoners and yet not be 5 liable for their injuries. Those whose callous indifference results in liability are those under a 6 duty -- possessed of authority and means -- to prevent the injury.”) Nevertheless, it was not 7 beyond Defendant’s job duties to call an RN or the ACH and report Plaintiff’s bleeding/clotting 8 complaints in the morning of January 26, 2014. Indeed, this is what he did when examining 9 Plaintiff after custody staff sounded the alarm before the third shift started.3 10 Thus, draw all inferences in the light most favorable to Plaintiff, Comite de Jornaleros de 11 Redondo Beach, 657 F.3d at 942, the Court finds he has met his burden of establishing that triable 12 issues of fact exist as to whether Defendant could have and should have called an RN or 13 physician during their interactions at the C-window, and whether Defendant properly relayed all 14 of Plaintiff’s symptoms and vital statistics as reflected in the 7362 form to the RN on the phone 15 on January 26, 2014, to defeat Defendant’s motion for summary judgment. Matsushita Elec. 16 Indus. Co., 475 U.S. at 586. 17 V. Dismissal of Defendant John Doe, R.N. 18 Rule 4(m) provides: 19 If a defendant is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 20 21 22 23 24 25 In cases involving a plaintiff proceeding in forma pauperis, the Marshal, upon order of the Court, shall serve the summons and the complaint. 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). “[A]n incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint and should not be penalized by having his action 26 27 28 3 As discussed previously, there is a genuine issue of fact as to whether Defendant relayed all pertinent information on Plaintiff’s condition to the RN during that call. 16 1 dismissed for failure to effect service where the U.S. Marshal or the court clerk has failed to 2 perform his duties.” Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal quotations 3 and citation omitted), abrogated on other grounds by Sandin v. Connor, 515 U.S. 472 (1995). 4 However, where a pro se plaintiff fails to provide the Marshal with accurate and sufficient 5 information to effect service of the summons and complaint, the Court’s sua sponte dismissal of 6 an unserved defendant is appropriate. Walker, 14 F.3d at 1421-22. 7 At this juncture, Plaintiff has failed to submit any information identifying Defendant John 8 Doe, RN for the Marshal’s Office to even attempt to locate and serve him. Walker, 14 F.3d at 9 1421-22. This action has been pending for over two years. Plaintiff’s time for identifying and 10 serving Defendant John Doe, RN has been extended well beyond 120 days from the filing of the 11 Complaint as allowed in Rule 4(m). While good cause initially existed to allow extension beyond 12 the 120-day service deadline, there is no good cause to extend the time for service of Defendant 13 John Doe, RN any further. It is Plaintiff’s obligation to provide information necessary to identify 14 and locate a given defendant. This Plaintiff has not done and it appears he is unable to do so. 15 In the screening order, Plaintiff was informed that the Federal Rules of Civil Procedure 16 include no provision “permitting the use of fictitious defendants.” McMillan v. Department of 17 Interior, 907 F.Supp. 322, 328 D.Nev. 1995), aff’d, 87 F.3d 1320 (9th Cir. 1996), cert. denied, 18 519 U.S. 1132 (1997); see also Fifty Associates v. Prudential Ins. Co., 446 F.2d 1187, 1191 (9th 19 Cir. 1970). Plaintiff was further informed that “[a]s a general rule, the use of ‘John Doe’ to 20 identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 21 Nonetheless, Plaintiff was afforded an opportunity to identify the unknown defendant through 22 discovery, as it was not clear that discovery would not reveal John Doe RN’s identity. Id. 23 Plaintiff was cautioned in the screening order that he was required to identify John Doe RN by 24 name to proceed on claims against him in this action. (Doc. 10, pp. 12-13.) 25 A court may dismiss a defendant, a claim, or an action with prejudice, based on a party’s 26 failure to prosecute an action or failure to obey a court order, or failure to comply with local rules. 27 See, e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 28 comply with an order requiring amendment of complaint); Malone v. U.S. Postal Service, 833 17 1 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. 2 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply 3 with local rules). The deadline to amend pleadings, (Doc. 20), and the discovery cut-off deadline 4 (Doc. 31) have passed without Plaintiff filing anything to indicate that he has ascertained the true 5 name of John Doe RN to prosecute. 6 On December 22, 2017, the Court ordered Plaintiff to show cause why Defendant John 7 Doe, RN and all claims against him should not be dismissed with prejudice for Plaintiff’s failure 8 to prosecute this action against John Doe RN by identifying and substituting his true name in this 9 action. (Doc. 39.) Despite lapse of nearly eight months since that order issued, Plaintiff has 10 failed to provide any additional information to identify Defendant John Doe, RN for service or to 11 otherwise prosecute this action against him. 12 VI. 13 Conclusions and Recommendations As set forth herein, this Court finds that Plaintiff has established a dispute of material fact 14 to prevent granting Defendant’s motion for summary judgment. Further, Plaintiff has failed to 15 provide sufficient information upon which to identify and locate Defendant John Doe, RN for 16 service of a summons in this action and has failed to prosecute this action against him, requiring 17 dismissal. Accordingly, the Court RECOMMENDS: 18 (1) Defendant LVN M. Flores is not entitled to judgment as a matter of law and his 19 Motion for Summary Judgment, filed on December 20, 2017 (Doc. 35), should be 20 DENIED; 21 22 23 24 25 26 27 28 (2) Defendant John Doe RN should be DISMISSED with prejudice based on Plaintiff’s failure to prosecute; (3) the Clerk should be directed to rename this action “Reyes v. Flores” and to terminate John Doe RN from the docket; and (4) the parties should be ordered to participate in a settlement conference and to indicate whether they will require court supervision. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 18 1 days after being served with these Findings and Recommendations, the parties may file written 2 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 Findings and Recommendations.” The parties are advised that failure to file objections within the 4 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 8 9 IT IS SO ORDERED. Dated: August 16, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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