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CLEMENT v. CALIFORNIA DEPT. OF CORRECTIONS
September 9, 2002
FRANK CLEMENT, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Wilken, District Judge.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S MOTION FOR A
PRELIMINARY INJUNCTION; GRANTING PLAINTIFF PARTIAL SUMMARY
Defendant California Department of Corrections (CDC) and the
named Defendant employees of the CDC (Individual Defendants)
move for summary judgment on Plaintiff Frank Clement's section
1983 claims for damages and injunctive relief. Plaintiff opposes
the motion and moves for preliminary injunctive relief with
respect to one of his claims. Defendants oppose Plaintiff's
request for a preliminary injunction. The matter was heard on
August 9, 2002. Having considered all of the papers filed by the
parties and oral argument on the motion, the Court grants in
part and denies in part Defendants' motion for summary judgment
(Docket # 31), denies Plaintiff's request for a preliminary
injunction (Docket # 53), and grants partial summary judgment to
At all times relevant to this motion, Plaintiff was a prisoner
at Pelican Bay State Prison (Pelican Bay).
A. Delay in Diagnosis and Treatment for Colon Cancer
On April 8, 1999, Plaintiff advised a nurse that he had been
experiencing intermittent episodes of diarrhea, with blood and
mucus in watery, loose stool. She arranged for him to see a
doctor the next day. Declaration of Dwight Winslow (Winslow
Dec.), Ex. A. Plaintiff was examined by a doctor at Pelican Bay
on April 9, 1999. The doctor ordered a barium enema and ordered
that a stool sample be tested.
The doctor advised Plaintiff to return in two weeks for follow
up. Md., Ex. B. Plaintiff returned to Pelican Bay clinic on
April 12 complaining that his symptoms had worsened. He was
taken to Sutter Coast Hospital that day. Id., Ex. C. At Sutter
Coast Hospital, Plaintiff's abdomen was x-rayed and he was
evaluated by Dr. Picone. Dr. Picone recommended that Plaintiff
be put on a bland diet and be scheduled for a
colonoscopy.*fn1 Id., Ex. D-E.
The results of the barium enema became available on April 13,
1999. They showed the presence of one small polyp, two small
polypoid lesions, and several small scattered diverticula in the
sigmoid colon. Id., Ex. F. On April 25, Pelican Bay medical
administrative review staff approved the colonoscopy as well as
an esophagogastroduodenoscopy (EGD).*fn2
Plaintiff saw Dr. White at the Pelican Bay Clinic on May 11,
1999 and on May 26, 1999. Dr. White noted that Plaintiff had
lost fourteen pounds in the two weeks between visits.
Declaration of Frank Clement (Clement Dec.), Exs. 8-9. On May
21, 1999, Plaintiff saw Dr. Picone at Sutter Coast Hospital. Dr.
Picone again recommended a colonoscopy. Id., Ex. H. On June 9,
1999, Plaintiff saw Dr. White at the Pelican Bay clinic. Dr.
White's notes from that visit indicate that she contacted Dr.
Picone's office and was told that Plaintiff's colonoscopy
appointment was "pending." Id., Ex. N. On June 22, 1999,
Plaintiff returned to the Pelican Bay clinic and again saw Dr.
White. Dr. White's notes from that meeting indicate that she
again contacted Dr. Picone's office and was told that
Plaintiff's surgery would be scheduled. Id., Ex. P. On June
24, 1999, Dr. Picone issued an addendum to his April 12, 1999
patient note. The addendum indicates that Plaintiff had been
scheduled for a colonoscopy (though it does not say when), but
that a "physical problem at the hospital prevent[ed] surgery on
that day." Id., Ex. Q.
On July 16, 1999, Plaintiff was taken to Sutter Coast Hospital
to have the colonoscopy and the EGD performed. Only the EGD was
performed on that day. Id., Ex. R. The parties dispute why the
colonoscopy was not performed on July 16. Plaintiff contends
that Defendants had not given him medication necessary to
prepare him for the procedure. Declaration of Frank Clement
(Clement Dec.) ¶ 5. Defendants contend that there was a
"technical problem" at the hospital that prevented the hospital
from performing the procedure. Winslow Dec., Ex. R.
On July 20, 1999, Plaintiff filed an administrative appeal
(602 appeal) because the colonoscopy had not yet been performed.
On August 2, 1999, a colonoscopy was performed on Plaintiff and
two polyps were removed. Id., Ex. V. The pathology report on
the removed polyps revealed that one was benign and the other
malignant. Id., Ex. W. The type of carcinoma revealed by the
biopsy is a slow growing, non-invasive malignancy. Id. ¶ 29.
On August 13, 1999, Plaintiff saw Dr. Picone to follow up on
the surgery. Dr. Picone recommended that Plaintiff return for
another colonoscopy in six months and that Plaintiff be put on a
high fiber, low-fat diet with no red meat. Id., Ex. X.
Defendant Winslow, the Chief Medical Officer at Pelican Bay,
does not believe that a red meat free diet is medically
necessary for Plaintiff. Id. ¶ 32. Plaintiff was not
immediately put on the specified diet. On August 25, 1999,
Plaintiff filed a 602 appeal
complaining that he was not receiving the diet ordered by Dr.
Picone. Clement Dec., Ex. 14. On October 17, 1999, Plaintiff's
low-fat diet was commenced, but Defendants continued to include
red meat in his diet. Clement Dec. ¶ 13. On December 21, 1999,
Plaintiff began to receive a second sack lunch along with his
low-fat diet so that he could substitute the meat portion of his
meal without sacrificing his caloric or nutritional intake.
Winslow Dec. ¶ 33.
Plaintiff has calcaneal bone spurs. Plaintiff contends that
because of this condition, the Pelican Bay — issued shoes cut
into the back of his heels, making walking and exercise
uncomfortable and resulting in blisters on his heels. Clement
Dec. ¶ 19. Plaintiff contends that he has a medical need for
tennis shoes from a vendor other than the one approved by the
facility. Although his treating physician has authorized such
purchases, that physician was overruled by Pelican Bay's Health
Care Manager. Clement Dec. ¶ 34. Plaintiff appealed the Health
Care Manager's decision through Pelican Bay's administrative
system. The decision not to permit Plaintiff to purchase tennis
shoes from an outside vendor was upheld on appeal. Id. ¶¶ 34,
On March 8, 2001, Plaintiff filed a petition for a writ of
habeas corpus in State court seeking an order allowing him to
purchase tennis shoes from an outside vendor. That writ was
denied on August 20, 2001 on the grounds that "a difference of
opinion among staff does not constitute deliberate indifference
to petitioner's medical needs." Declaration of Julianne Mossler
(Mossler Dec.), Ex. D (Order Denying Petition for Writ of Habeas
Corpus and Discharging Order to Show Cause).
C. Receipt of Internet Materials
In 1998, Pelican Bay adopted a policy that materials printed
from the Internet were considered "unauthorized publications"
and could not be enclosed in letters sent to prisoners from the
outside. The prison changed this policy several times over the
next two years and the most recent version was formalized in a
memo from the Warden in February, 2001. Declaration of Deirdre
K. Mulligan (Mulligan Dec.), Ex. C.
Pelican Bay prisoners do not have access to the Internet.
Prisoners, therefore, cannot directly access materials on-line.
Pelican Bay's policy bans prisoners from receiving through the
mail hard copies of material downloaded from the Internet.
Plaintiff filed an inmate grievance contesting this policy in
January, 1999 when his pen-pal correspondence was returned to
the sender due to the new policy. Plaintiff had subscribed to an
Internet pen-pal service which allows a prisoner to post a web
page and solicit correspondence. Those who would like to
communicate with the inmate may send an e-mail to the prisoner's
web page. The service provider then downloads the e-mail and
sends it via the United States Postal Service to the inmate. On
January 10, 1999 and April 6, 1999, the prison mailroom rejected
letters sent by the Internet service to Plaintiff because they
contained messages downloaded from the Internet. Plaintiff filed
a grievance which was ultimately denied by prison authorities.
Like Pelican Bay, at least eight other prisons in California
also prohibit prisoners from receiving any items downloaded from
the Internet. Mulligan Dec. ¶ 6-8. Presently, the majority of
California State prisons have no such regulation.
Summary judgment is properly granted when no genuine and
disputed issues of material fact remain, and when, viewing the
evidence most favorably to the non-moving party, the movant is
clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Eisenberg v. Ins. Co. of N. Am.,
815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no
material factual dispute. Therefore, the Court must regard as
true the opposing party's evidence, if supported by affidavits
or other evidentiary material. Celotex, 477 U.S. at 324,
106 S.Ct. 2548; Eisenberg, 815 F.2d at 1289. The Court must draw
all reasonable inferences in favor of the party against whom
summary judgment is sought. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986); Intel Corp. v. Hartford Accident & Indem.
Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment
are those which, under applicable substantive law, may affect
the outcome of the case. The substantive law will identify which
facts are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Where the moving party does not bear the burden of proof on an
issue at trial, the moving party may discharge its burden of
showing that no genuine issue of material fact remains by
demonstrating that "there is an absence of evidence to support
the nonmoving party's case." Celotex, 477 U.S. at 325,
106 S.Ct. 2548. The moving party is not required to produce evidence
showing the absence of a material fact on such issues, nor must
the moving party support its motion with evidence negating the
non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695
(1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th
Cir. 1991), cert. denied, 502 U.S. 994, 112 S.Ct. 617,
116 L.Ed.2d 639 (1991). If the moving party shows an absence of
evidence to support the non-moving party's case, the burden then
shifts to the opposing party to produce "specific evidence,
through affidavits or admissible discovery material, to show
that the dispute exists." Bhan, 929 F.2d at 1409. A complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts
immaterial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.
If one party moves for summary judgment and it appears from
the oral arguments, records, affidavits, and documents presented
to the Court that there is no genuine dispute regarding material
facts essential to the movant's case, and that the case cannot
be proved at trial, the Court may sua sponte grant summary
judgment in favor of the non-moving party. Portsmouth Square,
Inc. v. Shareholders Protective Comm., 770 F.2d 866 (9th Cir.
1985) (citing Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311-12
(9th Cir. 1982)). The fundamental issue is whether the party
against whom summary judgment is rendered had a full and fair
opportunity to ventilate the issues involved in the motion. See
Cool Fuel, 685 F.2d at 312.
Title 42 U.S.C. § 1983 "provides a cause of action for the
`deprivation of any rights, privileges, or immunities secured by
the Constitution and laws' of the United States." Wilder v.
Virginia Hosp. Ass'n, 496 U.S. 498, 508, 110 S.Ct. 2510,
110 L.Ed.2d 455 (1990) (quoting 42 U.S.C.
§ 1983). Section 1983 is not itself a source of substantive
rights, but merely provides a method for vindicating federal
rights elsewhere conferred. See Graham v. Connor,
490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To state a
claim under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws
of the United States was violated and (2) that the alleged
violation was committed by a person acting under the color of
State law. See West v. Atkins, 487 U.S. 42, 48,
108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Ketchum v. Alameda County,
811 F.2d 1243, 1245 (9th Cir. 1987).
1. Eighth Amendment Claims
A prison official violates the Eighth Amendment when two
requirements are met: (1) the deprivation alleged must be,
objectively, sufficiently serious, see Farmer, 511 U.S. at
834, 114 S.Ct. 1970 (citing Wilson v. Seiter, 501 U.S. 294,
298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)), and (2) the prison
official possesses a sufficiently culpable state of mind, see
id. (citing Wilson, 501 U.S. at 297, 111 S.Ct. 2321).
In determining whether a deprivation of a basic necessity is
sufficiently serious to satisfy the objective component of an
Eighth Amendment claim, a court must consider the circumstances,
nature, and duration of the deprivation. The more basic the
need, the shorter the time it can be withheld. See Johnson v.
Lewis, 217 F.3d 726, 731 (9th Cir. 2000). Substantial
deprivations of shelter, food, drinking water or sanitation for
four days, for example, are sufficiently serious to satisfy the
objective component of an Eighth Amendment claim. See id. at
The requisite state of mind to establish an Eighth Amendment
violation depends on the nature of the claim. In
prison-conditions cases, the necessary state of mind is one of
"deliberate indifference." See, e.g., Farmer, 511 U.S. at 834,
114 S.Ct. 1970 (inmate safety); Helling, 509 U.S. at 32-33,
113 S.Ct. 2475 (inmate health); Wilson, 501 U.S. at 302-03,
111 S.Ct. 2321 (general conditions of confinement); Estelle v.
Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
(inmate health). Neither negligence nor gross negligence will
constitute deliberate indifference. See Farmer, 511 U.S. ...