Craig v. V. Brim, No. 4:2015cv03664 - Document 44 (N.D. Cal. 2017)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; STAY AND REERRAL TO MEDIATION by Judge Phyllis J. Hamilton granting in part and denying in part 33 Motion for Summary Judgment. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 8/30/2017)
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Craig v. V. Brim Doc. 44 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT FRED CRAIG, Plaintiff, 10 United States District Court Northern District of California 11 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; STAY AND REFERRAL TO MEDIATION Defendant. 8 9 Case No. 15-cv-03664-PJH Re: Dkt. No. 33 v. V. BRIM, 12 13 This is a civil rights case brought pro se by a state prisoner under 42 U.S.C. § 14 1983. His claims arise from his detention in San Quentin State Prison (“SQSP”). Plaintiff 15 alleges that defendant nurse Brim was deliberately indifferent to his serious medical 16 needs and retaliated against plaintiff after he filed an inmate appeal. Defendant has filed 17 a motion for summary judgment. Plaintiff has filed an opposition, and defendant has filed 18 a reply. For the reasons set forth below, the motion is granted in part and denied in part. 19 DISCUSSION 20 Motion for Summary Judgment 21 A. Summary Judgment Standard 22 Summary judgment is proper where the pleadings, discovery and affidavits show 23 that there is "no genuine dispute as to any material fact and the movant is entitled to 24 judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may 25 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 26 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 27 reasonable jury to return a verdict for the nonmoving party. Id. 28 The moving party for summary judgment bears the initial burden of identifying 1 those portions of the pleadings, discovery and affidavits which demonstrate the absence 2 of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); 3 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When 4 the moving party has met this burden of production, the nonmoving party must go beyond 5 the pleadings and, by its own affidavits or discovery, set forth specific facts showing that 6 there is a genuine issue for trial. Id. If the nonmoving party fails to produce enough 7 evidence to show a genuine issue of material fact, the moving party wins. Id. 8 9 At summary judgment, the court must view the evidence in the light most favorable to the nonmoving party: if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the judge must assume the truth of the evidence set 11 United States District Court Northern District of California 10 forth by the nonmoving party with respect to that fact. See Tolan v. Cotton, 134 S. Ct. 12 1861, 1865 (2014); Leslie v. Grupo ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). 13 B. Eighth Amendment Standard 14 Deliberate indifference to serious medical needs violates the Eighth Amendment’s 15 proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 16 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other 17 grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en 18 banc). A determination of “deliberate indifference” involves an examination of two 19 elements: the seriousness of the prisoner's medical need and the nature of the 20 defendant's response to that need. Id. at 1059. 21 A “serious” medical need exists if the failure to treat a prisoner’s condition could 22 result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. 23 The existence of an injury that a reasonable doctor or patient would find important and 24 worthy of comment or treatment; the presence of a medical condition that significantly 25 affects an individual's daily activities; or the existence of chronic and substantial pain are 26 examples of indications that a prisoner has a “serious” need for medical treatment. Id. at 27 1059-60. 28 2 1 A prison official is deliberately indifferent if he or she knows that a prisoner faces a 2 substantial risk of serious harm and disregards that risk by failing to take reasonable 3 steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must 4 not only “be aware of facts from which the inference could be drawn that a substantial 5 risk of serious harm exists,” but he “must also draw the inference.” Id. If a prison official 6 should have been aware of the risk, but was not, then the official has not violated the 7 Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 8 F.3d 1175, 1188 (9th Cir. 2002). “A difference of opinion between a prisoner-patient and 9 prison medical authorities regarding treatment does not give rise to a § 1983 claim.” 10 Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981). United States District Court Northern District of California 11 C. First Amendment Standard 12 "Within the prison context, a viable claim of First Amendment retaliation entails five 13 basic elements: (1) An assertion that a state actor took some adverse action against an 14 inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) 15 chilled the inmate's exercise of his First Amendment rights, and (5) the action did not 16 reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 17 567-68 (9th Cir. 2005) (footnote omitted). Accord Pratt v. Rowland, 65 F.3d 802, 806 (9th 18 Cir. 1995) (prisoner suing prison officials under § 1983 for retaliation must allege that he 19 was retaliated against for exercising his constitutional rights and that the retaliatory action 20 did not advance legitimate penological goals, such as preserving institutional order and 21 discipline); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (same). 22 The prisoner must show that the type of activity he was engaged in was 23 constitutionally protected, that the protected conduct was a substantial or motivating 24 factor for the alleged retaliatory action, and that the retaliatory action advanced no 25 legitimate penological interest. Hines v. Gomez, 108 F.3d 265, 267-68 (9th Cir. 1997) 26 (inferring retaliatory motive from circumstantial evidence). The right of access to the 27 courts extends to established prison grievance procedures. See Bradley v. Hall, 64 F.3d 28 1276, 1279 (9th Cir. 1995). Thus, a prisoner may not be retaliated against for using such 3 1 procedures. See Rhodes, 408 F.3d at 567. 2 D. Facts 3 The following facts are undisputed except where indicated otherwise:1 4 Plaintiff was incarcerated at SQSP during the relevant time. Am. Compl. at 1. 5 Defendant Brim was a nurse at SQSP during the relevant time. Id. at 4. Plaintiff is a 6 diabetic who takes insulin. Id. On March 3, 2015, plaintiff had a medical appointment with defendant to receive 7 insulin. Id. Defendant provided plaintiff with the wrong insulin dosage and the wrong 9 type of insulin. Id. Plaintiff had an adverse reaction and was taken to the hospital. Id; 10 Motion for Summary Judgment (“MSJ”), Cregger Decl., Ex. A. He later returned to the 11 United States District Court Northern District of California 8 prison. Id. Plaintiff submitted an inmate appeal shortly after this incident. MSJ, Cregger 12 Decl., Ex. A. On July 28, 2015, plaintiff had another medical appointment with defendant to 13 14 receive insulin. MSJ, Cregger Decl., Ex. B. Defendant was about to provide the wrong 15 dosage of insulin, but plaintiff brought this error to her attention and plaintiff was provided 16 the correct dosage. Id. Plaintiff took the correct dosage and there was no medical harm. 17 Id. 18 Plaintiff submitted an inmate appeal regarding the second incorrect insulin dosage 19 on July 31, 2015. Id. Plaintiff sought for defendant to be held accountable and not issue 20 any reprisals against plaintiff. Id. On or about August 3, 2015, defendant made a 21 comment to another correctional officer that she was nervous and uncomfortable around 22 plaintiff. MSJ, Cregger Decl., Ex. C. The correctional officer spoke to plaintiff and told 23 him not to disrespect defendant. Id. Plaintiff had a job working in the same building as 24 defendant for the previous year and two months. Id. The correctional officer asked 25 plaintiff to change his work shift so he would not interact with defendant. Id. Plaintiff 26 changed his shift, but defendant again saw plaintiff and once again spoke to the 27 28 1 The court notes that defendant Brim has not submitted a declaration. 4 1 correctional officer. Id. Plaintiff was then removed from his job. Am. Compl. at 4; MSJ, 2 Cregger Decl., Ex. D. ANALYSIS 3 4 A. Eighth Amendment Claim 5 Plaintiff argues that defendant was deliberately indifferent to his serious medical 6 needs by providing the incorrect insulin on two occasions. It is undisputed that plaintiff 7 was provided the incorrect insulin in March 2015 and had to be taken to the hospital. It is 8 undisputed that plaintiff did not take the incorrect insulin in July 2015. Plaintiff noticed the 9 error, was provided the correct insulin and there was no medical harm. 10 However, plaintiff only demonstrates that defendant made a mistake and was United States District Court Northern District of California 11 perhaps negligent. A claim of negligence or medical malpractice is insufficient to make 12 out a violation of the Eighth Amendment. See Toguchi v. Chung, 391 F.3d 1051, 1060- 13 61 (9th Cir. 2004); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); see, e.g., Frost v. 14 Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (finding no merit in claims stemming from 15 alleged delays in administering pain medication, treating broken nose and providing 16 replacement crutch because claims did not amount to more than negligence); McGuckin, 17 974 F.2d at 1059 (mere negligence in diagnosing or treating a medical condition, without 18 more, does not violate a prisoner’s 8th Amendment rights); O'Loughlin v. Doe, 920 F.2d 19 614, 617 (9th Cir. 1990) (repeatedly failing to satisfy requests for aspirins and antacids to 20 alleviate headaches, nausea and pain is not constitutional violation; isolated occurrences 21 of neglect may constitute grounds for medical malpractice but do not rise to level of 22 unnecessary and wanton infliction of pain). 23 Even viewing the evidence in a light most favorable to plaintiff, defendant has met 24 her burden in showing that there is no genuine dispute as to any material fact and she is 25 entitled to judgment as a matter of law with respect to the medical claim. Defendant’s 26 actions while perhaps rising to the level of negligence do not meet the high standard for 27 an Eighth Amendment claim, and plaintiff has failed to meet his burden in showing a 28 genuine issue for trial. Summary judgment is granted for this claim. 5 1 B. First Amendment Claim 2 Plaintiff argues that as a result of filing the inmate appeal regarding the incorrect 3 insulin in late July 2015, defendant spoke to a correctional officer about feeling “nervous 4 and uncomfortable” around plaintiff and plaintiff lost his job. Defendant has not provided 5 any evidence to counter plaintiff’s argument. Rather, defendant argues that plaintiff has 6 failed to provide enough evidence to survive summary judgment. Defendant contends 7 that evidence showing that she was nervous and uncomfortable around plaintiff is 8 insufficient to show retaliation. 9 However, the undisputed evidence demonstrates that a few days after plaintiff filed the inmate appeal, defendant spoke to a correctional officer and made the statement 11 United States District Court Northern District of California 10 about plaintiff. Plaintiff changed his work schedule, but defendant saw plaintiff and again 12 spoke to a correctional officer. Plaintiff then lost his job that he had had for the prior year 13 and two months. Defendant has offered no explanation as to why she was all of a 14 sudden nervous and uncomfortable around plaintiff despite his prior complaint about her 15 medical error, which had been submitted four months earlier, and his working in the same 16 building for the prior year and two months. Nor is there any explanation as to why 17 plaintiff lost his job. Moreover, the court must view the evidence in the light most 18 favorable to the plaintiff, the nonmoving party. 19 Evidence probative of retaliatory animus includes proximity in time between the 20 protected speech and the alleged adverse action, the prison official’s expressed 21 opposition to the speech, and the prison official’s proffered reason for the adverse action 22 was false or pretextual. See Shepard v. Quillen, 840 F.3d 686, 690 (9th Cir. 2016). 23 Retaliatory motive may also be shown by inconsistency with previous actions, as well as 24 direct evidence. Bruce v. Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2003). 25 A jury could find that defendant’s comments about plaintiff resulted in the loss of 26 his job because of his filing of the inmate appeal and chilled the exercise of his First 27 Amendment rights. Defendant has presented no evidence that her actions reasonably 28 advanced a legitimate correctional goal. Defendant has failed to meet her burden and 6 1 summary judgment is denied. 2 C. Qualified Immunity 3 The defense of qualified immunity protects “government officials . . . from liability 4 for civil damages insofar as their conduct does not violate clearly established statutory or 5 constitutional rights of which a reasonable person would have known.” Harlow v. 6 Fitzgerald, 457 U.S. 800, 818 (1982). The rule of “qualified immunity protects ‘all but the 7 plainly incompetent or those who knowingly violate the law.’” Saucier v. Katz, 533 U.S. 8 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Defendants can 9 have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Id. at 205. A court considering a claim of qualified immunity must 11 United States District Court Northern District of California 10 determine whether the plaintiff has alleged the deprivation of an actual constitutional right 12 and whether such right was clearly established such that it would be clear to a 13 reasonable officer that his conduct was unlawful in the situation he confronted. See 14 Pearson v. Callahan, 555 U.S. 223, 236 (2009) (overruling the sequence of the two-part 15 test that required determining a deprivation first and then deciding whether such right was 16 clearly established, as required by Saucier). The court may exercise its discretion in 17 deciding which prong to address first, in light of the particular circumstances of each 18 case. Pearson, 555 U.S. at 236. 19 With respect to the medical claim, the court has not found a constitutional violation 20 and even if there was a violation it would not be clear to a reasonable nurse that such a 21 mistake would violate the Eighth Amendment. Defendant is entitled to qualified immunity 22 for this claim. 23 With respect to the retaliation claim, defendant is not entitled to qualified immunity. 24 Plaintiff has adequately alleged a violation of a clearly established constitutional right, in 25 that a reasonable person in defendant’s position would not have believed that it was 26 lawful to have plaintiff removed from his job after filing an inmate appeal. 27 28 7 FUR RTHER PRO OCEEDING GS 1 2 In light of the court's denial of this motio this cas shall be r t o on, se referred to Magistrate 3 Jud Vadas for settlem dge ment procee edings pursu uant to the Pro Se Prisoner Settlement 4 Pro ogram. The proceedin will take place with one hu e ngs e hin undred and twenty da of the d ays 5 date this orde is filed. Magistrate Judge Vada will coor er M J as rdinate a tim and date for a me e 6 set ttlement pro oceeding with all intere w ested partie and/or th represe es heir entatives and, within 7 fiv days afte the conclusion of the proceedin ve er ngs, file wit the court a report of the th t f 8 pro oceedings. CONCLU USION 9 10 1. For the reason set forth above, the motion for summary j r ns e r judgment (D Docket No. United States District Court Northern District of California 11 33) is DENIED in part. Summary ju D S udgment is granted for the Eighth Amendme claim, r h ent 12 but the First Amendment retaliation claim cont A n tinues. 13 2. The case is referred to Magistrate Ju e udge Vadas for settlem ment proce eedings 14 pursuant to th Pro Se Prisoner Se he P ettlement Pr rogram. Th clerk sha send a c he all copy of this 15 ord to Magistrate Judg Vadas in the Eureka Division. In view of the referral, this case der ge n a 16 is STAYED pending the settlement proceeding S gs. 17 3. The parties are ordered to attend the proceedin and tak part in th e e o e ngs ke hem. 18 Pla aintiff is cau utioned that failure to attend or ta part in t settleme confere t a ake the ent ence may 19 res in the dismissal of this action. He is not required to settle the case, but h must sult d f t o he 20 attend and take part in settlement discussions s d s. 21 22 IT IS SO ORDER S RED. Da ated: Augus 30, 2017 st 23 24 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 25 26 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2015\2015_03664 4_Craig_v_Brim_ _(PSP)\15-cv-03 3664-PJH-sj.docx x 27 28 8 1 UNITED STATES D D DISTRICT C COURT 2 NORTHER DISTRIC OF CALI RN CT IFORNIA 3 4 ROBERT FRE CRAIG, ED , Case No. 1 15-cv-03664 4-PJH Plaintiff, 5 v. CERTIFIC CATE OF S SERVICE 6 7 V. BRIM, V Defendant. . 8 9 10 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice strict Court, Northern Di istrict of Cal lifornia. Dis United States District Court Northern District of California 11 12 13 14 15 That on August 30, 2017, I SER n RVED a true and correct copy(ies) o the attache by e t of ed, pla acing said co opy(ies) in a postage paid envelope a d addressed to the person(s hereinafte listed, by s) er dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 16 17 Robert Fred Cr ID: AS6 raig 6563 San Quentin, CA 94974 n C 18 19 Ma agRef; NJV CRD via em mail 20 21 Da ated: August 30, 2017 22 23 24 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict 25 26 27 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 28 9