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Kevin Rodgers v. James Tilton

July 8, 2011



Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. This matter is before the court on a motion for summary judgment brought on behalf of defendant Athanassious pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has filed an opposition to the motion. Defendant has filed a reply.


Plaintiff is proceeding on his original complaint against defendants Athanassious and Pettigrew.*fn1 Therein, plaintiff alleges as follows. On August 18, 2006, defendant Pettigrew opened the door to Dorm 3 and asked plaintiff if he needed medication either because plaintiff had been dropped on his head or had taken some kind of drugs prior to being incarcerated. Plaintiff approached the door and placed his hand on the door frame. Defendant Pettigrew slammed the door shut, pinning plaintiff's finger between the metal door and the door frame. Plaintiff screamed in pain and told defendant Pettigrew that his finger was cut off and bleeding. Defendant Pettigrew laughed until he saw plaintiff's blood pooled on the floor. Defendant Pettigrew then yelled "man down" and asked another inmate to retrieve a towel. (Compl. at 11.)

Plaintiff was taken to the B-1 Clinic where defendant Dr. Athanassious attempted to re-attach plaintiff's crushed and severed digit. Defendant Dr. Athanassious stitched and dressed plaintiff's finger and provided him with pain medication. On August 31, 2006, plaintiff had an appointment with defendant Dr. Athanassious to have the stitches removed and to treat his pain and possible infection. However, defendant Athanassious was not there, so Nurse Rubio removed plaintiff's stitches. Nurse Rubio informed plaintiff that his finger looked bad because it was swollen and pus was coming from the wound. Plaintiff's finger also smelled bad, and there was dead tissue surrounding exposed bone. Nurse Rubio asked the physician on duty to look at plaintiff's finger. That physician determined that plaintiff needed to be sent to an outside hospital to have a specialist examine him. Shortly thereafter, defendant Dr. Athanassious came in and looked at plaintiff's finger. He said that plaintiff should continue to change the dressing on his finger and use benedyne soaks. Defendant Dr. Athanassious also prescribed a stronger antibiotic for plaintiff. (Compl. at 20-21.)

On September 7, 2006, plaintiff went back to the B-1 Clinic because he was in unbearable pain and believed that his infection was getting worse. At that time plaintiff saw Dr. Long who asked him why he was soaking his finger in benedyne. Plaintiff told him that defendant Dr. Athanassious had recommended that treatment. Dr. Long told the nurse on duty to soak plaintiff's finger in peroxide and admitted plaintiff to the G-1 Hospital. (Compl. at 21.)

On September 8, 2006, plaintiff was unable to urinate, so Dr. Calvo ordered a catheter for him. Dr. Calvo also sent plaintiff to B-2 Surgery where defendant Dr. Athanassious was ready to perform the catheterization procedure. According to plaintiff, defendant Dr. Athanassious grabbed plaintiff's penis and started to push the catheter in, but at some point he met resistance because it would not go in any further. Defendant Dr. Athanassious attempted to force the catheter in as plaintiff screamed in pain, asking for the doctor to stop because he was hurting plaintiff. The medical technical assistant had to hold plaintiff down during this procedure. Plaintiff repeatedly asked defendant Dr. Athanassious to stop, but he kept shoving the catheter further and told plaintiff to keep his mouth shut and that he was being a baby. After fifteen to twenty minutes the catheter was inserted, but plaintiff could barely move or stand. When plaintiff returned to his room, he could not sit or lay down and moving was painful. Plaintiff could only stand in his room in one place for nearly an hour until Dr. Calvo told a nurse to remove his catheter. Once the catheter was out, plaintiff began to bleed and continued to bleed for three days thereafter. (Compl. at 23-24.)

On the same day as the catheterization, plaintiff was rushed to Doctor's Hospital to see a specialist with regard to his finger. While at the hospital, medical personnel were unable to bring his infection under control and informed plaintiff that they would need to amputate half of his finger. According to the specialist, the bone in plaintiff's finger could not be salvaged and should have been amputated at the time of his injury. Plaintiff stayed at Doctor's Hospital receiving treatment until September 13, 2006. (Compl. at 22.)

Plaintiff is proceeding against defendant Pettigrew on an Eighth Amendment excessive use of force claim and against defendant Dr. Athanassious on an Eighth Amendment inadequate medical care claim in connection with both the treatment of his finger injury and the insertion of the catheter.


Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).


I. Civil Rights Act Pursuant to 42 U.S.C. § 1983

The Civil Rights Act under which this action was filed provides as follows: 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.

42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement of official personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

II. The Eighth Amendment and Inadequate Medical Care

The unnecessary and wanton infliction of pain constitutes cruel and unusual punishment prohibited by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In order to prevail on a claim of cruel and unusual punishment, a prisoner must allege and prove that objectively he suffered a sufficiently serious deprivation and that subjectively prison officials acted with ...

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