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Floyd Moody, Cdcr #G-26035 v. Paulette Finander

October 28, 2011

FLOYD MOODY, CDCR #G-26035, PLAINTIFF,
v.
PAULETTE FINANDER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: United States District Judge Honorable Larry Alan Burns

ORDER DIRECTING ENTRY OF FINAL JUDGMENT AS TO DEFENDANTS FINANDER, BALL, AND BUTCHER; ORDER CERTIFYING APPEAL IS NOT TAKEN IN GOOD FAITH; ORDER DENYING MOTION TO STRIKE BILL OF COSTS; AND ORDER REQUIRING PLAINTIFF TO PROVIDE FORM FOR SERVICE OF PROCESS

On September 23, 2011, the Court issued an order adopting Magistrate Judge Bernard Skomal's report and recommendation, granting partial summary judgment, and dismissing with prejudice all claims against Defendants Finander, Ball, and Butcher. Dr. Reddy had not yet been properly served, and the Court granted an extension of time in which to accomplish service.

I. Final Judgment as to Defendants Finander, Ball, and Butcher

Following the Court's order, the Clerk entered judgment as to Defendants Finander, Ball, and Butcher, and costs were taxed. Moody then filed a notice of appeal. Although the Court had not directed that judgment be entered as to these Defendants, see Fed. R. Civ. P. 54(b), it finds no just reason for delay, and does so now. The Court, nunc pro tunc, directs entry of final judgment as to claims against Defendants Finander, Ball, and Butcher.

II. Whether Appeal is Taken in Good Faith

Having entered final judgment as to these Defendants, the Court now turns to the question of whether an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3). Because Moody has already filed his notice of appeal, the Court considers his stated bases for appeal there, but also considers whether he could bring any appeal in good faith.

This action was brought under 42 U.S.C. § 1983. Moody has serious medical problems, but the uncontested evidence and even his own admissions show Drs. Finander, Ball, and Butcher were not deliberately indifferent to them. At most, one or more of them might have been negligent. See Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (explaining that negligence in diagnosing or treating a medical condition does not give rise to an Eighth Amendment claim). Furthermore, it did not result in any harm to him. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (holding that a plaintiff bringing a § 1983 deliberate indifference claim must show, among other things, that the defendant's deliberate indifference caused harm). Moody's chief complaint was that he was not timely screened for liver cancer. But when he was screened, liver cancer was ruled out. He now agrees he does not have liver cancer, and never did. He made no showing of any harm that resulted from a delay in conducting that screening.

Moody also suffers from numerous other diseases and medical problems, but the uncontroverted evidence shows Drs. Finander, Ball, and Butcher have been making extensive efforts to diagnose and treat these, to the extent possible. The fact that Moody disagrees, however violently, with their course of treatment does not amount to a denial of his constitutional rights. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (difference of opinion between prisoner and his doctors does not constitute deliberate indifference). The uncontroverted evidence also show some of Moody's medical problems, notably hepatis C, cannot safely be treated until his overall health improves, and these doctors' failure to do the impossible does not give rise to any meritorious cause of action.

The mere fact that Moody is in pain as a result of generally poor health and untreatable conditions is unfortunate, but it does not create liability.

Moody's notice of appeal raises other arguments that are belied by the record. His mere arguments and allegations are insufficient to render summary judgment inappropriate, however. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (in the summary judgment context, holding that a plaintiff "can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts" to resist the motion).

The Court therefore certifies that Moody's appeal is not taken in good faith, and that no appeal from the grant of summary judgment in favor of Defendants Finander, Butcher, and Ball would be taken in good faith.

III. Motion to Strike Bill of Costs

On October 6, a notice regarding the bill of costs filed by Defendant Finander (who was represented by private counsel) was filed in the docket and sent to Moody. The notice gave Moody until October 21, 2011 to file any opposition or responsive pleading. No opposition was received, and on October 25 costs in the amount of $1,174.75 were taxed against Moody. Then the Court received by discrepancy order Moody's motion to strike the bill of costs, which was apparently sent on October 18. Because the motion to strike was submitted before costs were taxed, the Court now considers that motion as an opposition to the bill of costs.

Under Fed. R. Civ. P. 54(d) and 28 U.S.C. ยง 1920, costs are awardable to a prevailing party unless a federal statute, the Federal Rules of Civil Procedure, or a court order provide otherwise, and costs are taxable by the Clerk of Court. Moody does not identify any nontaxable costs or error in taxing costs, but argues he should not have to pay costs because he proceeded pro se and in forma ...


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