The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION ORDER DENYING WITHOUT PREJUDICE RENEWED MOTION TO DISMISS MISJOINED DEFENDANTS (Document 33)
On May 5, 2010, Defendants Frances Garza, Emily Vargas, Catherine Nacar, Michael Van Natta, and Mark Smith ("Defendants") filed the instant motion for summary adjudication. The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. The matter was heard on June 25, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. David A. Carrasco appeared on behalf of Defendants. Ken I. Karan appeared telephonically on behalf of Plaintiff Steven C. Martinez ("Plaintiff" or "Martinez").
Plaintiff filed this civil rights action on May 21, 2009, against Defendants Derral G. Adams, William J. McGuinness, M.D., Frances Garza, Emily Vargas, Catherine Nacar, Michael Van Natta, Mike Smith, Cornelio Garcia and Paul Sena.*fn1
On February 2, 2010, Defendants filed a motion to dismiss claims against Derral G. Adams and William J. McGuinness, M.D., and to sever claims against the remaining defendants. Plaintiff opposed the motion.
On March 9, 2010, the Court dismissed with prejudice the claims against Defendants Adams and McGuinness and severed and dismissed without prejudice the claims against Defendants Cornelio Garcia and Paul Sena.*fn2 The Court ordered the matter to proceed with Plaintiff's claims against Defendants Frances Garza, Emily Vargas, Catherine Nacar, Michael Van Natta and Mark Smith ("nurse defendants"). In denying severance of claims as to the individual nurse defendants, the Court stated:
Mr. Martinez suggests that he will attempt to prove that the nurse defendants colluded to deprive him medical care or to retaliate against him. Overlap appears with the claims against the nurse defendants, who are better suited to defend such collusion claim jointly. Moreover, a joinder of the nurse defendants promotes economy of resources, especially if Mr. Martinez' claims are disposed of by summary judgment.
Order of March 9, 2010, p. 24.
On May 5, 2010, the nurse defendants filed the instant motion for summary adjudication on the issue of whether they conspired to undermine Plaintiff's health care treatment. The nurse defendants also renewed their motion to dismiss misjoined defendants.
Plaintiff filed an opposition on June 8, 2010, and the nurse defendants filed a reply on June 17, 2010.
Non-expert discovery in this matter closed on July 2, 2010. Expert discovery closes on August 13, 2010. The dispositive motion deadline is October 15, 2010. Trial is set for February 22, 2011.
FACTUAL ALLEGATIONS IN THE COMPLAINT
Plaintiff is incarcerated at California State Prison - Corcoran ("CSPC"). He is a quadriplegic and an insulin dependent diabetic. He generally alleges that he is a victim of abuse, negligence and retaliation.
As to the nurse defendants, Plaintiff alleges that Nurse Garza has "threatened Plaintiff with retaliation by her husband, who is a correctional officer, for filing complaints" and "violated Plaintiff's constitutionally protected right to confidential communications with his attorney by reading mail between Plaintiff and his attorney and other protected documents." Complaint ¶¶ 77-78.
On or about November 4, 2007, Nurse Nacar "abused and battered Plaintiff when she simulated letting him fall, and then catching him." Complaint ¶ 95. On an unidentified date during catheterization, Nurse Nacar "broke the sterile field but continued to use the contaminated equipment." When Plaintiff objected, Nurse Nacar jerked the catheter from Plaintiff's urethra. Complaint ¶ 96.
On or about November 7, 2007, Nurse Vargas "assaulted Mr. Martinez by making a death threat against him" as "retaliation for Plaintiff asserting his rights." Nurse Vargas further retaliated by filing charges against him that resulted in a disciplinary proceeding. Complaint ¶ 94.
On November 17, 2007, Nurse Smith "pushed Plaintiff back into his chair by pushing on the front of his throat with the intent to cause harm" to retaliate against Plaintiff "for his complaint over Smith twisting Plaintiff's head during an attempt to reposition him." Complaint ¶ 100.
On or about November 21, 2007, Nurse Van Natta intentionally left Plaintiff "in a position on his back known to [Van Natta] to be painful to Plaintiff and to cause difficulty breathing" to retaliate against Plaintiff for "complaints about the care he was receiving." Complaint ¶ 97.
On unidentified dates, non-defendant Nurse Brewer "has denied Plaintiff access to medical care to address episodes of autonomic dysreflexia, removed his call button from him, refused to provide blood sugar checks, or to catheterize him." Complaint ¶ 101.
On two unspecified occasions, an unidentified nurse "put a pillow case over Plaintiff's head during treatment to punish him." Complaint ¶ 79.
Based on these and other allegations asserted generally against Defendants, Plaintiff brings causes of action for (1) violation of his Eighth Amendment "rights to be free from cruel and unusual punishment in the form of Defendants' deliberate indifference to Plaintiff's personal health and safety" under 42 U.S.C. § 1983; (2) abuse of dependent adult under California Welfare & Institutions Code §§ 15600 et seq.; (3) medical negligence against unidentified health care providers; (4) retaliation "to discourage or prevent Plaintiff from taking part in the lawful exercise of his rights or benefitting therefrom;" (5) intentional infliction of emotional distress; (6) assault against Nurse Vargas; and (7) battery against Nurses Garza, Nacar, Smith and Van Natta.
Plaintiff seeks damages, medical expenses, punitive damages and attorney fees.
UNDISPUTED MATERIAL FACTS*fn3
1. Martinez is a prisoner at CSP-Corcoran, serving a sentence of 150 years to life following convictions on two multiple counts of rape, forcible oral copulation, and penetration with a foreign object. Joint Statement of Undisputed Facts ("JSUF") 1.
2. In February 2001, at Centinela State Prison, inmates attacked Martinez and rendered him a tetraplegic. JSUF 2.
3. Approximately a year and a half later, at California Institution for Men, Martinez developed a severe pressure sore that required several surgeries. JSUF 3.
4. Martinez filed two lawsuits in State court--one for the attack leaving him a tetraplegic, and the other for his pressure sore--which he settled with CDCR for $750,000. JSUF 4.
5. In January 2003, Martinez was transferred to CSP-Corcoran, where he has been housed in the Acute Care Hospital since then. JSUF 5.
6. In May 2008, Martinez filed an amended complaint in Case 1:07-cv-996, against seventeen individual defendants, including the five Defendants in this case, alleging dozens of federal and state claims arising since his confinement at CSP-Corcoran.
7. The claims Martinez asserted against the five nurses in this case are the same claims he asserted against them in Case 1:07-cv-996. JSUF 24.
8. Among defendants' Rule 26 disclosures in case 07-996, was the memorandum dated November 27, 2007, concerning Martinez' care and conduct, and the two-page list of signatures, dated November 19, 2007 (hereinafter "memorandum"). JSUF 25.
9. In case 1:07-cv-996, Martinez moved for leave to take sixteen depositions beyond the ten allowed under Federal Rule of Civil Procedure 30(a)(2)(A). JSUF 26.
10. Martinez supported his application for additional depositions by referencing the memorandum signed by the nurses concerning his health care, and stating that each nurse who signed the memorandum is a potential witness and defendant. JSUF 27.
11. In Case 1:07-cv-996, Martinez took the depositions of: Warden Adams, Nurse Barrera, Correctional Officer Bradley, Nurse Brewer, Nurse Childress, Nurse Cole, Social Worker DeLeon, Correctional Officer Garcia, Nurse Garza, CDCR Ombudsman Jackson, Supervising Nurse Lau, Nurse Nacar, Physician/Surgeon Neubarth, Correctional Officer Sena, Nurse Smith, Nurse Van Natta, Nurse Vargas, Associate Warden for Health Care Santoro, Acting Director of Nursing Schaper, and Acting Health Care Manager Schutt. JSUF 29.
12. In addition to taking twenty depositions of nursing and custodial staff at CSP-Corcoran, Martinez propounded many sets of written discovery requests to the ...