(PC) Dean v. Gonzales, No. 2:2010cv01355 - Document 119 (E.D. Cal. 2014)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/06/14 denying 111 Motion for a full pardon. Also, RECOMMENDING that plaintiff's motion for summary judgment 103 be denied. Defendants' motion f or summary judgment 96 be granted as to all claims except for the claim that defendants Hailey-Currey and Neustadt denied plaintiff's requests for leg bags and catheters. Motions 96 and 103 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALTON E. DEAN, 12 Plaintiff, 13 14 No. 2: 10-cv-1355 MCE KJN P v. ORDER AND FINDINGS AND RECOMMENDATIONS KATHRYN M. GONZALES, et al., 15 Defendants. 16 17 Introduction Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 19 to 42 U.S.C. § 1983.1 This action is proceeding on the fifth amended complaint filed November 20 28, 2011, against defendants Gonzales, Neustadt and Hailey-Currey. (ECF No. 34.) Plaintiff 21 alleges that he received inadequate medical care while housed at the Sacramento County Jail. 22 (Id.) Pending before the court are cross-motions for summary judgment. (ECF Nos. 96, 103.) 23 24 For the reasons stated herein, the undersigned recommends that defendants’ motion be granted in 25 1 26 27 28 On November 30, 2010, the court dismissed this action for plaintiff’s failure to pay the filing fee after finding that plaintiff had three prior “strikes” pursuant to 28 U.S.C. § 1915(g). (ECF No. 14.) On April 19, 2011, the Ninth Circuit Court of Appeals reversed the November 30, 2010 order, finding that plaintiff met the imminent danger exception sufficient to satisfy the conditions of 28 U.S.C. § 1915(g). (ECF No. 19.) 1 1 part and denied in part, and that plaintiff’s motion be denied. 2 Legal Standard for Summary Judgment 3 Summary judgment is appropriate when it is demonstrated that the standard set forth in 4 Federal Rule of Civil procedure 56 is met. “The court shall grant summary judgment if the 5 movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law.” Fed. R. Civ. P. 56(a). 7 Under summary judgment practice, the moving party always bears the initial 8 responsibility of informing the district court of the basis for its motion, and identifying those 9 portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, 10 together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue 11 of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. 12 R. Civ. P. 56(c).) “Where the nonmoving party bears the burden of proof at trial, the moving 13 party need only prove that there is an absence of evidence to support the non-moving party’s 14 case.” Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 15 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 16 56 Advisory Committee Notes to 2010 Amendments (recognizing that “a party who does not 17 have the trial burden of production may rely on a showing that a party who does have the trial 18 burden cannot produce admissible evidence to carry its burden as to the fact”). Indeed, summary 19 judgment should be entered, after adequate time for discovery and upon motion, against a party 20 who fails to make a showing sufficient to establish the existence of an element essential to that 21 party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp., 477 22 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving 23 party’s case necessarily renders all other facts immaterial.” Id. at 323. 24 Consequently, if the moving party meets its initial responsibility, the burden then shifts to 25 the opposing party to establish that a genuine issue as to any material fact actually exists. See 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 27 establish the existence of such a factual dispute, the opposing party may not rely upon the 28 allegations or denials of its pleadings, but is required to tender evidence of specific facts in the 2 1 form of affidavits, and/or admissible discovery material in support of its contention that such a 2 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party 3 must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome 4 of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 5 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 6 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return 7 a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 8 (9th Cir. 1987). 9 In the endeavor to establish the existence of a factual dispute, the opposing party need not 10 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 11 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 12 trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce 13 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 14 Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s note on 1963 15 amendments). 16 In resolving a summary judgment motion, the court examines the pleadings, depositions, 17 answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. 18 Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 19 255. All reasonable inferences that may be drawn from the facts placed before the court must be 20 drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences 21 are not drawn out of the air, and it is the opposing party’s obligation to produce a factual 22 predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. 23 Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 24 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 25 some metaphysical doubt as to the material facts. . . . Where the record taken 26 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 27 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 586 (citation omitted). 28 //// 3 1 2 3 4 Legal Standard for Claim Alleging Inadequate Medical Care Although not entirely clear, it appears that plaintiff was a pretrial detainee during the relevant time period he was incarcerated at the Sacramento County Jail. A pretrial detainee’s protections against cruel and unusual punishment arise under the Due 5 Process Clause of the Fourteenth Amendment, but are evaluated under the Eighth Amendment’s 6 deliberate indifference standards. See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th 7 Cir. 2010); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1241 (9th Cir. 2010) (“We have 8 long analyzed claims that correction facility officials violated pretrial detainees' constitutional 9 rights by failing to address their medical needs (including suicide prevention) under a ‘deliberate 10 11 indifference’ standard.”); Lolli v. Cnty. of Orange, 351 F.3d 410, 418–19 (9th Cir. 2003). To establish a claim for failure to provide timely or adequate medical care, a prisoner 12 must show that he suffered from a serious medical need and that prison officials were deliberately 13 indifferent to that need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). In the Ninth Circuit, the test 14 for deliberate indifference consists of two parts, an objective prong and a subjective prong. See 15 Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (citation omitted); McGuckin v. Smith, 974 16 F.2d 1050 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 17 1133 (9th Cir. 1997) (en banc). Objectively, a prisoner must show a serious medical need, that is, 18 a need that involves more than a de minimis injury that could result in further significant injury or 19 the unnecessary and wanton infliction of pain if left untreated. Estelle, 429 U.S. at 104; Jett v. 20 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Subjectively, deliberate indifference requires a 21 purposeful act or failure to respond to that pain or possible medical need and harm caused by the 22 indifference. Estelle, 429 U.S. at 104–05; Jett, 439 F.3d at 1096. 23 Plaintiff’s Claims 24 Plaintiff is a wheelchair bound hemiplegic. (ECF No. 34 at 7.) Plaintiff alleges that 25 defendants denied his requests for Tylenol with Codeine for pain, Dilantin for seizures, and leg 26 bags and catheters, for the entire period of his incarceration from March 2, 2010, to April 26, 27 2011. (Id. at 3.) Plaintiff alleges that on March 2, 2010, his pain medication was discontinued 28 and he never received Dilantin. (Id. at 5.) Plaintiff also alleges that he did not receive leg bags 4 1 and catheters. (Id. at 6.) 2 Plaintiff alleges that he had several life threatening seizures while housed at the 3 Sacramento County Jail. (Id. at 7.) Plaintiff alleges that he suffered from bed sores, urine and 4 bladder infections as a result of not having leg bags and catheters. (Id. at 7-8.) 5 Plaintiff’s Summary Judgment Motion 6 Local Rule 260(a) provides that a summary judgment motion shall be accompanied by a 7 “Statement of Undisputed Facts” that enumerates each of the specific material facts relied upon in 8 support of the motion. In their opposition to plaintiff’s summary judgment motion, defendants 9 argue that plaintiff’s summary judgment motion should be denied because it fails to include a 10 statement of undisputed facts as required by Local Rule 260(a). (ECF No. 107.) Defendants are correct that plaintiff’s summary judgment motion includes no Statement of 11 12 Undisputed Facts. Plaintiff’s reply to defendants’ opposition contains 12 numbered paragraphs. 13 (ECF No. 109.) Most of these paragraphs contain legal argument. The undersigned does not 14 construe plaintiff’s reply to contain a statement of undisputed facts. In their opposition, defendants also argue that plaintiff’s summary judgment motion 15 16 should be denied because it fails to identify or cite any evidence in the record in support of the 17 motion, as required by Federal Rule of Civil Procedure 56. (ECF No. 107.) As discussed above, 18 under summary judgment practice, the moving party always bears the initial responsibility of 19 informing the district court of the basis for its motion, and identifying those portions of “the 20 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 21 affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 22 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 23 56(c).) 24 The first two pages of plaintiff’s summary judgment motion contain legal argument with 25 no citation to evidence in support of the motion. (ECF No. 103.) The remaining 48 pages of 26 plaintiff’s motion are exhibits, including a copy of plaintiff motion to join complaints and reply to 27 defendants’ answer, defendants’ responses to several discovery requests, a copy of an order 28 addressing plaintiff’s motion to compel and motion for deposition upon written question, and a 5 1 copy of an incident report from the Sacramento County Jail concerning plaintiff’s alleged 2 palming of medication. In the opposition, defendants argue that it is not their burden to wade 3 through these exhibits and identify material facts plaintiff believes may exist to support his 4 summary judgment motion. Having reviewed plaintiff’s summary judgment motion, the undersigned agrees with 5 6 defendants that plaintiff’s summary judgment motion fails to comply with Federal Rule of Civil 7 Procedure 56. 8 While the Ninth Circuit upholds a “policy of liberal construction in favor of pro se 9 litigants,” Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), the court is also clear that a pro se 10 litigant must “abide by the rules of the court in which he litigates,” Bias v. Moynihan, 508 F.3d 11 1212, 1223 (9th Cir. 2007) (quotation omitted). For the reasons discussed above, the undersigned 12 finds that plaintiff’s summary judgment motion does not comply with Local Rule 230(a) or 13 Federal Rule of Civil Procedure 56. On these grounds, the undersigned recommends that 14 plaintiff’s summary judgment motion be denied. 15 Defendants’ Summary Judgment Motion2 16 In the reply to plaintiff’s opposition, defendants argue that plaintiff’s opposition does not 17 comply with Local Rule 260(b). (ECF No. 104.) Local Rule 260(b) provides that an opposition 18 to a summary judgment motion shall reproduce the itemized facts in the Statement of Undisputed 19 Facts and admit those facts that are undisputed or deny those that are disputed. Having reviewed 20 plaintiff’s opposition (ECF Nos. 102, 102-2), the undersigned agrees with defendants that 21 plaintiff’s opposition includes no Statement of Undisputed Facts as required by Local Rule 22 260(b). 23 //// 24 2 25 26 27 28 In addition to arguing that defendants did not violate plaintiff’s right to adequate medical care, defendants argue that defendant Gonzales did not violate plaintiff’s right to due process in connection with her processing of plaintiff’s administrative grievances. See Ramirez v. Galaza, 334 F.3d 850, 960 (9th Cir. 2003) (there is no federal constitutional right to a prison administrative grievance or appeal system). The undersigned does not find that plaintiff is raising a due process claim based on the processing of his grievances. Were plaintiff to raise such a claim, defendants would be entitled to summary judgment pursuant to Ramirez v. Galaza, supra. 6 1 Defendants also argue that plaintiff’s opposition includes no admissible evidence. After 2 reviewing plaintiff’s lengthy opposition (id.), the undersigned finds that the only relevant 3 evidence attached to plaintiff’s opposition is a copy of his verified fifth amended complaint. See 4 Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (verified complaint may be used as opposing 5 affidavit if it is based on pleader’s personal knowledge of specific facts which are admissible in 6 evidence). 7 Because plaintiff has failed to comply with Local Rule 260(b), defendants’ statement of 8 undisputed facts is accepted except where brought in dispute by plaintiff’s verified fifth amended 9 complaint. 10 Undisputed Facts 11 At all relevant times, defendant Gonzales worked as a Grievance Coordinator at the 12 Sacramento County Jail. In this position, defendant Gonzales reviewed and responded to inmate- 13 patient grievances. 14 15 16 17 On March 5, 2010, and March 15, 2010, plaintiff filed grievances with the Sacramento County Mail Jail complaining that he was being denied Tylenol # 3. On March 31, 2010, defendant Gonzales responded in writing to plaintiff’s March 5, 2010 and March 15, 2010 grievances. 18 As a licensed vocational nurse (“LVN”), defendant Gonzales could not prescribe 19 medication to an inmate-patient while employed at the Sacramento County Jail; she could only 20 administer medications that were already ordered by a physician. 21 As an LVN, defendant Hailey-Currey could not prescribe medication to an inmate-patient 22 while employed at the Sacramento County Jail; she could only administer medications that were 23 already ordered by a physician. 24 As a registered nurse, defendant Neustadt could not prescribe medication to an inmate- 25 patient while employed at the Sacramento County Jail; she could only administer medications that 26 were already ordered by a physician. 27 28 From 2009 to 2011 at the Sacramento County Jail, leg bags and condom catheters were readily available if an inmate-patient required them. 7 1 Alleged Denial of Tylenol with Codeine 2 The undersigned first considers plaintiff’s claim that defendants denied him Tylenol with 3 4 Codeine for pain. The following facts from the record are relevant to the discussion of this claim. At his deposition, plaintiff testified that his Tylenol with Codeine was discontinued after 5 he was caught palming his Neurontin. (Plaintiff’s Deposition at 19.) Plaintiff testified that he 6 palmed the Neurontin because he had a court date that day and the Neurontin made him sleepy. 7 (Id.) Plaintiff testified that he planned on taking the Neurontin later that day. (Id.) 8 9 In denying plaintiff’s grievances regarding the discontinuation of his Tylenol with Codeine, defendant Gonzales wrote that the Sacramento County Jail has a “no tolerance 10 Palming/Cheeking/Stashing Medication Policy.” (ECF no. 96-4 at 5.) Cheeking will result in the 11 discontinuation of narcotics. (Id.) Defendant Gonzales also wrote that plaintiff would no longer 12 receive narcotics for discomfort per the physicians order and policy. (Id.) Defendant Gonzales 13 also stated that plaintiff was currently receiving Ultram and Neurontin for the management of his 14 discomfort. (Id.) 15 16 17 At his deposition, plaintiff testified that the defendants told him to go the doctor when he complained about not receiving his medication. (Plaintiff’s Deposition at 30, 54.) For the following reasons, the undersigned recommends that defendants be granted 18 summary judgment as to plaintiff’s claim that he was denied Tylenol with Codeine. First, it is 19 undisputed that none of the defendants had the authority to prescribe medication to plaintiff. 20 It is undisputed that the defendants could only administer medications that were already ordered 21 by a physician. When plaintiff’s Tylenol with Codeine was discontinued after he was caught 22 cheeking/palming Neurontin, none of the defendants had the authority to reinstate plaintiff’s 23 Tylenol with Codeine prescription. According to plaintiff, the defendants advised plaintiff to talk 24 to his doctors regarding his medication. This advice does not constitute deliberate indifference. 25 There is also no evidence of deliberate indifference by defendants in connection with the 26 decision to discontinue the Tylenol with Codeine after plaintiff was caught cheeking/palming. 27 Plaintiff does not dispute that he was caught cheeking/palming. According to defendant 28 Gonzales, the decision to discontinue the Tylenol with Codeine was made by a doctor and 8 1 pursuant to a policy. Plaintiff has presented no evidence that any defendant was responsible for 2 the decision to discontinue his Tylenol with Codeine. The undersigned again observes that 3 plaintiff does not dispute that if he wanted his Tylenol with Codeine reinstated, defendants 4 advised him to talk to a doctor. The evidence does not demonstrate any violation of plaintiff’s constitutional right to 5 6 adequate medical care by defendants with regard to the discontinuation of and non-reinstatement 7 of plaintiff’s prescription for Tylenol with Codeine. There is no evidence that any defendant 8 acted with deliberate indifference. Accordingly, defendants should be granted summary 9 judgment as to this claim. 10 Alleged Denial of Dilantin 11 Plaintiff alleges that defendants denied his requests for Dilantin. Defendants move for 12 summary judgment as to this claim on grounds that none of the defendants had the authority to 13 prescribe medication to plaintiff. It is undisputed that the defendants could only administer 14 medications that were already ordered by a physician. As discussed above, at his deposition 15 plaintiff testified that defendants advised him to talk to doctors regarding his medication. 16 Because it is undisputed that defendants were not authorized to prescribe Dilantin, and 17 they advised plaintiff to talk to a doctor regarding his medication, the undersigned finds that 18 defendants did not act with deliberate indifference by failing to provide plaintiff with Dilantin. 19 Accordingly, defendants should be granted summary judgment as to this claim.3 20 //// 21 //// 22 3 23 24 25 26 27 28 Defendants also state that plaintiff was prescribed Neurontin for seizures while housed at the Sacramento County Jail. Defendants state that plaintiff wanted Dilantin because that was his “regular” seizure medication. The only evidence provided by defendants that plaintiff was prescribed Neurontin for seizures is plaintiff’s deposition testimony. Neurontin, aka Gabapentin, is used to treat some types of seizures and some kinds of pain See http://epilepsy.med.nyu.edu/treatment/medications/gabapentin#sthash.2KRHKDQZ.dpbs. The undersigned has reviewed plaintiff’s deposition testimony and it is not clear if plaintiff knows whether the Neurontin was prescribed for seizures. As noted above, plaintiff alleges that he had several life threatening seizures while housed at the Sacramento County Jail. For these reasons, the undersigned does not reach the issue of whether Neurontin was prescribed to treat plaintiff’s seizures. 9 1 Alleged Denial of Catheters and Leg Bags 2 Defendants move for summary judgment as to plaintiff’s claim that he was denied 3 catheters and leg bags on grounds that it is undisputed that from 2009 to 2011 at the Sacramento 4 County Jail, leg bags and condom catheters were readily available if an inmate-patient required 5 them. In their declarations filed in support of the summary judgment motion, defendants Hailey- 6 Currey and Neustadt state that if an inmate-patient asked them to provide him with a leg bag and 7 condom catheter, their practice was to provide those supplies as needed. (ECF Nos. 96-5 at 2, 96- 8 6 at 2.) 9 In his verified fifth amended complaint, plaintiff alleges that defendants did not “grant” 10 him leg bags or catheters. (ECF No. 34 at 7.) Plaintiff alleges that he suffered from urine and 11 bladder infections and bed sores as a result of not having leg bags and catheters. (Id.) Plaintiff 12 alleges that he informed Nurse Tanya, i.e., defendant Neustadt, that feces and urine were clogged 13 up in his wheelchair, but he was only given a shower. (Id. at 7.) Plaintiff alleges that defendant 14 Nurse Tanya, i.e. defendant Neustadt, ignored plaintiff when he informed her of his problems. 15 (Id.) Plaintiff alleges that defendants Nurse Suzanne, i.e., defendant Hailey-Currey, and Nurse 16 Tanya, i.e., defendant Neustadt, failed to provide him with medical supplies. (Id. at 10.) 17 Whether defendants Hailey-Currey and Neutstadt denied plaintiff’s requests for leg bags 18 and catheters is a materially disputed fact. While defendants claim that any request for these 19 items would have been granted, plaintiff alleges in his verified fifth amended complaint that 20 defendants ignored his requests. The fifth amended complaint alleges that defendant Neustadt 21 ignored plaintiff’s request and need for leg bags and catheters. While the allegations against 22 defendant Hailey-Currey are less clear, the undersigned finds that the fifth amended complaint 23 contains sufficient allegations that defendant Hailey-Currey refused plaintiff’s requests for leg 24 bags and catheters. Accordingly, defendants Hailey-Currey and Neustadt should be denied 25 summary judgment as to this claim. 26 Although not argued by defendants, the undersigned observes that plaintiff has not linked 27 defendant Gonzales to his claim alleging denial of leg bags and catheters. The Civil Rights Act 28 under which this action was filed provides as follows: 10 1 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 2 3 4 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the 5 actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See 6 Monell v. Department of Social Servs., 436 U.S. 658 (1978) (“Congress did not intend § 1983 7 liability to attach where . . . causation [is] absent.”); Rizzo v. Goode, 423 U.S. 362 (1976) (no 8 affirmative link between the incidents of police misconduct and the adoption of any plan or policy 9 demonstrating their authorization or approval of such misconduct). “A person ‘subjects’ another 10 to the deprivation of a constitutional right, within the meaning of § 1983, if he does an 11 affirmative act, participates in another's affirmative acts or omits to perform an act which he is 12 legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978). Moreover, supervisory personnel are generally not liable under § 1983 for the actions of 14 15 their employees under a theory of respondeat superior and, therefore, when a named defendant 16 holds a supervisorial position, the causal link between him and the claimed constitutional 17 violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979) 18 (no liability where there is no allegation of personal participation); Mosher v. Saalfeld, 589 F.2d 19 438, 441 (9th Cir. 1978) (no liability where there is no evidence of personal participation), cert. 20 denied, 442 U.S. 941 (1979). Vague and conclusory allegations concerning the involvement of 21 official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 22 F.2d 266, 268 (9th Cir. 1982) (complaint devoid of specific factual allegations of personal 23 participation is insufficient). Plaintiff does not specifically allege that defendant Gonzales denied him leg bags and 24 25 catheters. Because defendant Gonzales is not linked to this claim, this claim against defendant 26 Gonzales should be dismissed. See 28 U.S.C. § 1915(e)(2) (court shall dismiss case at any time if 27 it determines that it fails to state a claim upon which relief may be granted). 28 //// 11 1 2 Remaining Matters On January 15, 2014, plaintiff filed a pleading titled “notice of motion for a full pardon.” 3 (ECF No. 111.) In this motion, plaintiff requests that judgment be awarded in his favor. This 4 motion is denied as procedurally improper. 5 6 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for a full pardon (ECF No. 111) is denied; and 7 IT IS HEREBY RECOMMENDED that: 8 1. 9 2. Defendants’ motion for summary judgment (ECF No. 96) be granted as to all claims Plaintiff’s motion for summary judgment (ECF No. 103) be denied; 10 except for the claim that defendants Hailey-Currey and Neustadt denied plaintiff’s 11 requests for leg bags and catheters. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 17 objections shall be filed and served within fourteen days after service of the objections. The 18 parties are advised that failure to file objections within the specified time may waive the right to 19 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 Dated: June 6, 2014 21 22 Dean1355.sj 23 24 25 26 27 28 12
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