The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
I. Introduction and Summary
Plaintiff is a prison inmate proceeding with appointed counsel with a civil rights action. Plaintiff proceeds with claims under the Eighth Amendment regarding deliberate indifference to serious medical needs, the Americans with Disabilities Act (ADA), and state law medical malpractice that span several years at Mule Creek State Prison (MCSP). This action is before the undersigned pursuant to both parties consent. Docs. 212, 214.
As the procedural history, infra, indicates, the case has been an adjudication nightmare. It starts out with a complaint with too many defendants, too many or amorphous claims, seriatim requests for injunctive relief and numerous amendments and motions. It is only one of hundreds of pending prisoner cases which the undersigned maintains at any one time (amongst the myriad of other case related duties both criminal and civil assigned to magistrate judges). As is often the case, numerous requests for counsel are made during the course of the case, but it is almost always not possible to determine whether to expend one of the scarce counsel resources maintained in the district on account of the murkiness of the allegations and the less than apparent possibility of success.*fn1
This motion for summary judgment is especially difficult to adjudicate in light of the lengthy period of time under review, the copious amount of medical examination/procedures supplied to plaintiff, the waxing and waning of his conditions, and finally, the amorphous or conclusory description of those precise events, or non-events, which plaintiff believes constituted deliberate indifference and/or a violation of the ADA. The undersigned will not reach out to adjudicate claims not precisely made by plaintiff's counsel, and will not reach claims determined to be abandoned at some time in this litigation.
This action proceeds against defendants Akintola, Nale, Smith, Subia, Williams and Campbell. Defendants Huerta-Garcia and Johnson were dismissed by the parties on February 25, 2011, as was the retaliation claim against Smith. Doc. 291. This case has a rather extensive procedural history which is set forth below.
This action commenced on January 5, 2007, naming 13 defendants for various federal and state law claims. A request for writ of mandate was filed no more than 14 days after the complaint's filing. Motions for immediate injunctive relief were made before the complaint could be screened in the normal process. Suffice it to say that with respect to ADA allegations, some of the preliminary relief motions had facial merit, and during the course of a year, most of the necessary relief was worked out or problems were mooted.
On August 23, 2007, defendants first appeared in this action by filing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). On December 5, 2007, the court recommended that defendants' motion be denied as to the Eighth Amendment medical claims against Smith. The court ordered the motion granted with leave to amend as to the claims against the other defendants. On May 29, 2008, plaintiff filed the operative amended complaint naming some of the original defendants and as well as several new defendants. Docs. 86, 88. On June 26, 2008, the court ordered the original defendants to answer the amended complaint and ordered service of the new defendants. On August 26, 2008, the original defendants filed an answer to the amended complaint. On November 4, 2008, several of the newly named defendants also filed an answer to the amended complaint.
On November 10, 2008, the court issued a scheduling order setting the dispositive motion cut-off date for June 19, 2009. On January 22, 2009, the remaining newly named defendants filed an answer to the amended complaint.
On February 27, 2009, defendants filed a motion to modify the scheduling order. Defendants requested that the court extend the discovery cut-off and dispositive motion filing dates because new defense counsel had been assigned. On March 13, 2009, the court granted this motion, and re-set the dispositive motion cut-off date to August 19, 2009.
On August 17, 2009, defendants filed a 25 page motion for judgment on the pleadings. The grounds of the motion were that plaintiff failed to exhaust his administrative remedies as to all defendants but for Smith and Williams and that several of the claims were not colorable.*fn2
On August 14, 2009, defendants also requested that the court vacate the current deadline for dispositive motions pending resolution of the motion for judgment on the pleadings, and re-set the deadline if necessary following resolution of that motion so that defendants may file a summary judgment motion. The court declined at that time to give defendants another bite at the summary judgment apple.
On November 9, 2009, the court issued findings and recommendations on the judgment on the pleadings. Several of the defendants were dismissed, however defendants motion to dismiss for failing to exhaust administrative remedies was denied. Doc. 207.*fn3
Other motions for summary judgment were made by certain defendants. The court will not detail here all of the motions which led to the final roster of defendants as set forth in the pretrial order. However, as a result of all motions, and a dismissal of several defendants by plaintiff himself, the defendants remaining are those set forth in the Pretrial Order and as set forth the section to follow. Suffice it to say that the court was compelled to spend an inordinate amount of time determining what defendants should stay and go in this litigation.
Trial commenced in this case for only one day on Monday, October 25, 2010. It became quite apparent that plaintiff was unable to competently present his case. Despite plaintiff's efforts, he was simply not articulate enough to function coherently in the courtroom. As a result the court declared a mistrial. In weighing various options the court indicated to plaintiff that the court would attempt to find plaintiff counsel, but noted that the court did not have the authority to force an attorney to represent plaintiff. The court also expressed its view that since the determination to mistry the case would benefit plaintiff, defendants would be provided an opportunity to file a motion for summary judgment.
On January 4, 2011, counsel was appointed for plaintiff to oppose defendants' anticipated motion for summary judgment that was filed on February 25, 2011. On March 8, 2011, the parties filed a briefing and hearing schedule and all briefings were to be filed by May 5, 2011, and the hearing on the summary judgment motion was to occur on May 19, 2011. On May 2, 2011, a few days before the summary judgment opposition was to be filed, plaintiff's counsel filed a request to reopen discovery for six months and to continue the summary judgment hearing at a date after the close of discovery. The court denied this request on May 4, 2011, noting that the request was far too broad but provided plaintiff ten days to describe in detail what discovery was needed and how long it would take to obtain it. Plaintiff's counsel filed a response on May 13, 2011, and then on May 19, 2011, filed a motion to withdraw as attorney.
New counsel was appointed for plaintiff and the opposition to summary judgment was finally filed on July 25, 2011. Defendants filed a reply on August 12, 2011.
No requests by plaintiff's counsel to incur reimbursable expert witness appointments pursuant to Eastern District General Order 230 were made.
III. Threshold Issues A. The Claims Remaining
As indicated above, much water has gone over the litigation dam in this case, although the parties in some respects fail to recognize such. Especially important is plaintiff's failure to understand that the Pretrial Order issued on July 7, 2010, (Doc. 236) governs and delimits the factual issues that may be raised in this case, except to the extent that plaintiff has further abandoned any issues set forth in that Order.
In that Order, which recognizes the overarching legal claims of Eighth Amendment deliberate indifference, state law medical malpractice and the ADA, the court found specific factual issues to be adjudicated:
1. Plaintiff has alleged that he suffers from the conditions of rectal prolapse and knee injury/ailments; these conditions, and only these conditions, are pertinent to this case.
Pretrial Order at 3 (emphasis added). *fn4
This ruling was made in light of the difficulty to ascertain the precise factual issues as stated in the operative complaint(s), plaintiff's tendency to attempt to muse about ailments during the various motions or other pleadings in this case that were not in his operative complaint, and upon which notice or exhaustion had transpired. The ruling was also made especially in light of plaintiff's pretrial statement. The pretrial statement, including the important specification of issues to be litigated, is not a meaningless document upon which the parties may later expand in their unfettered discretion. Thus, addition by plaintiff here of a back injury or other ailment, as serious medical conditions ripe for adjudication, is simply barred by the court's previous order.*fn5
Further, as set forth in footnote 3 of the Pretrial Order, with respect to the ADA claims, the only claims which the court could discern from the pretrial statement, and thus the only claims to be adjudicated herein, were that "plaintiff was unable to participate in work and educational programs because plaintiff was not provided with grab bars, crutches, canes and a special toilet seat." Thus, the attempt to expand (once again) the factual issues in this case, e.g., not permitting cell feeding at unspecified times, or not providing in-cell education, and start from scratch as if none of what has transpired in the past four years matters, is not an attempt the court will recognize as valid.
On February 25, 2011, plaintiff abandoned the retaliation claim posited against defendant Smith. Thus, the court will adjudicate the three legal claims set forth above as described by the remaining factual issues within those claims
B. Defendants Appropriate to the Remaining Claims.
In the Pretrial Order, the court found that only defendants Subia, Smith, Williams, Akintola, Nale Huerta-Garcia, Johnson and Campbell were appropriate defendants. The undersigned has re-reviewed this case and defendant Campbell continues as a defendant only as a defendant in her official capacity, and along with her replacement, defendant Subia, the only appropriate defendants for an ADA Title II claim.*fn6 Plaintiff has attempted to add Eighth Amendment claims against these defendants, in their roles denying inmate grievances for medical care, which are not part of this action and which will not be addressed.
IV. Motion for Summary Judgment
Legal Standard for Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to 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, 106 S. Ct. 2548, 2553 (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, 106 S. Ct. at 2552. "[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, 106 S. Ct. at 2553.
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, 106 S. Ct. 1348, 1356 (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, 106 S. Ct. at 1356 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, 106 S. Ct. 2505, 2510 (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, 106 S. Ct. at 1356 (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, 106 S. Ct. at 1356. 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, 106 S. Ct. at 1356 (citation omitted).
The following of defendants' undisputed facts (DUF) are either not disputed by plaintiff, or following the court's review of the evidence submitted, have been deemed undisputed:
During the relevant period of October 2003 to November 2007, plaintiff received 67 primary care physician visits, 43 with medical doctors and the remaining 24 with physicians assistants or nurse practitioners. DUF #216. From 2003 to 2007, plaintiff received three surgeries by independent outside medical facilities, one to repair his rectal prolapse*fn7 and two ACL reconstructions for his knee. DUF #217. From 2003 to 2007, plaintiff received numerous gastroenterolology consultations with UC Davis physicians concerning his rectal prolapse and numerous orthopedic consultations with outside orthopedists. DUF #218. From 2003 to 2007, plaintiff received five x-rays of his knee over a two-year period and two MRIs of his knee over a four-year period. DUF #219.
It is undisputed that plaintiff had knee injuries and was treated prior to the relevant period of this case, therefore the court will only include the treatment from the relevant period. On February 10, 2003, plaintiff re-injured his knee and was provided treatment that included a wrap, crutches and a medical lay in. DUF #171. While shooting a basketball plaintiff re-injured his knee on March 24, 2003, and received treatment, an ace bandage wrap, Motrin and a medical lay in. DUF #172. On May 17, 2003, plaintiff re-injured his knee while running to class. DUF #173. On May 29, 2003, plaintiff told doctors for the first time that he wanted knee surgery. DUF #174. On that day plaintiff was diagnosed with a chronic right knee injury that was not symptomatic and plaintiff was given a chrono for a low bunk, a modified work restriction for one year and an orthopedic consultation was submitted. DUF #176
On October 11, 2004, plaintiff re-injured his knee when he fell down some steps. DUF #179. On October 20, 2004, plaintiff saw a different orthopedist, who diagnosed a right ACL tear and medial meniscus tear and planned on performing an ACL reconstruction. DUF #181. On May 27, 2005, plaintiff received the ACL reconstruction. DUF #182. Following surgery, plaintiff was discharged back to MCSP with crutches and weight bearing as tolerated for six weeks. DUF #183.
Plaintiff later reported feeling a pop in his knee with pain. DUF #184. During follow up treatment it was assessed that plaintiff possibly re-injured his knee. DUF #185. More treatment followed including extended use of crutches, an MRI, orthopedic consultations and a second ACL surgery on September 26, 2007. DUF #186. Following the second surgery plaintiff was provided with a knee brace, ...