The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANTS HELLER AND WHEATLEY'S MOTION FOR SUMMARY JUDGMENT (Docket No. 92) ORDER GRANTING DEFENDANT BARRIOS' MOTION FOR SUMMARY JUDGMENT (Docket No. 127)
Plaintiff Matthew B. Cramer ("Plaintiff") is currently incarcerated and is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On July 6, 2010, Defendants Eric Heller ("Heller") and Clebo Wheatly ("Wheatly") filed a motion for summary judgment. (Doc. 92.) On September 16, 2010, Defendant Police Officer Greg Barrios ("Barrios") filed a motion for summary judgment. (Doc. 127.) Defendants assert that they are entitled to judgment as a matter of law because there are no genuine issues of material fact. For the reasons set forth below, the Court GRANTS Defendants Heller and Wheatly's motion for summary judgment and GRANTS Defendant Barrios' motion for summary judgment.
A. Plaintiff's Claim Pursuant to the Fourteenth Amendment
This action proceeds on Plaintiff's First Amended Complaint ("FAC") filed on February 17, 2009. (Doc. 10.) Plaintiff's claim arises out of a theft incident at a Target Store on March 3, 2008, to which Plaintiff pled "no contest." (Doc. 10, 6:13 ("Plaintiff does not dispute he pled no contest to this theft.").) In his FAC, Plaintiff asserts that his civil rights were violated due to the conduct of the Target Corporation ("Target") employees, who detained him and questioned him following his theft in the store, as well as the responding police officer who arrested him.
Plaintiff asserts that Michael J. Yant ("Yant"), Heller, an unnamed defendant referred to as the manager of the Target store (who was later identified as Wheatly (see Doc. 24)), and Officer Barrios were deliberately indifferent to his serious medical needs during the course of his arrest at the Target store on March 3, 2008. Plaintiff contends that Yant and Heller, who were working for Target as asset protection specialists, detained him for theft occurring inside the store. (Doc. 10, p. 5.) During the course of Plaintiff's apprehension and detention by Yant and Heller, they allegedly assaulted him and handcuffed him so tightly that he bled. (Doc. 10, p. 6.) According to the FAC, Barrios was dispatched to the Target store and "arrived on the scene at that time of [Yant] and [Heller] taking custody of Plaintiff. Defendant Barrios witnessed Defendant[s] Yant and Heller physically assault and drag Plaintiff back into the store." (Doc. 10, 6:10-20.) Once inside the store, an unidentified Target supervisor brought Plaintiff a bottle of water and a band-aid for a cut on Plaintiff's finger after Plaintiff lost consciousness four times. (Doc. 10, 8:1-6.)
Although Plaintiff complained of his injuries and demanded medical
attention due to a fractured clavicle, Barrios left Plaintiff in the
custody of Heller and Yant at the Target store and stated that he
would return later. (Doc. 10, 7:1-17.) .) Barrios then went to book
another suspect in the same theft incident. (Doc. 10, 7:1-10; Doc. 10, 89-91.)*fn1
Officer Barrios did not return for two hours, during which
time Plaintiff was denied medical attention. (Doc. 10, p. 7-9.)
Upon Defendant Barrios' return to the Target store, he immediately transported Plaintiff to the hospital. (Doc. 10, 9:16-17.) Plaintiff was diagnosed with a fractured clavicle and was provided an arm sling. (Doc. 10, 9:17-19.) Plaintiff asserted that his glasses were broken, he suffered dental injury and emotional distress, and he incurred hospital bills. (Doc. 10, 12:23-25.)
On June 8, 2009, the Court ordered that Plaintiff's claims for wrongful arrest, detention, accusation, and conviction be dismissed without leave to amend. (Doc. 15.) The Court found that Plaintiff stated one cognizable claim against Defendants Heller, Yant, Barrios, and the Defendant Doe (Target supervisor/store manager) for deliberate and indifferent delay or deprivation of medical care in violation of Plaintiff's constitutional rights. (Doc. 15.)
Plaintiff filed his initial complaint on November 7, 2008, against Target and the Tulare Police Department.*fn2 (Doc. 1.) The original complaint was screened pursuant to 28 U.S.C. § 1915(e) and was dismissed with leave to amend on December 9, 2008. (Doc. 5.) On February 17, 2009, Plaintiff filed an FAC naming four defendants: Michael J. Yant, Eric Heller, Officer Greg Barrios, and DoeDefendant (Target's store manager). The FAC was screened pursuant to the 28 U.S.C. § 1915(e), and the Court issued Findings and Recommendations determining that Plaintiff stated one cognizable claim for "deliberately indifferent delay or deprivation of medical care" against Defendants Heller, Yant, Barrios, and Doe Defendant.*fn3 (Doc. 11, 17:19-24.) The remainder of Plaintiff's claims were recommended for dismissal with prejudice. (Doc. 11, 17:25-28.) These Findings and Recommendations were adopted in full on June 8, 2009. (Doc. 15.)
On July 9, 2009, Plaintiff filed a motion to serve "Clevon Wheaton," who Plaintiff believed was the Doe Defendant Target store manager/supervisor that Plaintiff referenced in his complaint. (Doc. 17.) The Court determined that service was appropriate on "Clevon Wheaton" who was previously designated John Doe. (Doc. 24.) Clebo Wheatly, who was erroneously identified as Clevon Wheaton, answered the complaint on February 23, 2010. (Doc. 58.)
On October 7, 2009, the summons as to Yant was returned unexecuted. (Doc. 23.) The remarks on the unexecuted summons indicated that Yant was no longer employed with Target and service of process could not be completed. (Doc. 23.) On October 16, 2009, Plaintiff served subpoenas on Target attempting to compel employment records related to Yant, among other items. (See Doc. 37, 2:8-10.) On November 11, 2009, Target filed a motion to quash the subpoenas issued by Plaintiff. (Docs. 36, 37, 38, 39, 40.) On May 4, 2010, the Court quashed the subpoenas as they were improperly issued and served.
On May 27, 2010, Plaintiff filed a request that the Court construed as a motion to issue a subpoena duces tecum ordering Target to produce the last-known address of Yant. (Doc. 81.) Plaintiff's request for the issuance of a subpoena was granted and the Court ordered that Target produce the last-known address of Yant. (Doc. 89.) In response to the subpoena duces tecum, Target produced, under seal, Yant's address. (Doc. 111.) On August 9, 2010, the Court ordered that the U.S. Marshal attempt service upon Yant at the address produced by Target pursuant to the subpoena duces tecum. (Doc. 116.) On October 4, 2010, the summons as to Yant was returned unexecuted. (Doc. 128 (sealed).)
Meanwhile, on July 6, 2010, Heller and Wheatly filed a motion for summary judgment. (Doc. 92.) In support of the motion, Wheatly provided a declaration stating that he was on vacation on March 3, 2008, and was not present at the Target store during the alleged events. (Doc. 96.) On July 21, 2010, Plaintiff filed an opposition to Heller and Wheatly's motion for summary judgment. (Doc. 100.) On August 2, 2010, Defendants Heller and Wheatly filed a brief in reply to Plaintiff's opposition. (Doc. 109.)
Also in response to Heller and Wheatly's motion for summary judgment, Plaintiff filed a motion requesting that the Court issue a subpoena duces tecum as to Target for information as to who was managing the Target store on March 3, 2008. (Doc. 105.) On August 13, 2010, the Court issued an order denying Plaintiff's request to issue a subpoena duces tecum. (Doc. 120.) The Court explained that discovery was open and that Plaintiff was entitled to seek this information directly from Defendants. (Doc. 120, 3:5-6.) Further, Plaintiff was instructed that he could renew his request for a subpoena if he was unsuccessful in obtaining the information from Defendants pursuant to the discovery process. (Doc. 120, 3:5-10.)
On September 16, 2010, Defendant Barrios filed a motion for summary judgment. (Doc. 127.) On January 24, 2011, Plaintiff filed an opposition to Defendant Barrios' motion for summary judgment (Doc. 140), to which Defendant Barrios replied on February 3, 2011 (Doc. 143.)
On February 11, 2011, the Court issued an order construing Plaintiff's oppositions to each of the motions for summary judgment as containing Rule 56(f) motions.*fn4 (Doc. 147.) The Court determined that Plaintiff's Rule 56(f) motions were insufficient because they did not identify any facts or evidence that could be obtained with additional discovery or how any additional discovery evidence would preclude Defendants' motions. In denying Plaintiff's Rule 56(f) motions, however, the Court noted that Defendants' summary judgment motions were filed "before [Plaintiff] had any realistic opportunity to pursue discovery relating to [his] theory of the case" and permitted Plaintiff an opportunity to renew his 56(f) motion. By February 11, 2011, discovery had been open for approximately seven months (since August 2010), and the Court determined that Plaintiff would be better positioned to assess what evidence could be obtained. After providing Plaintiff with the applicable standards, the Court granted Plaintiff an additional 30 days to file renewed Rule 56(f) motions.
On March 2, 2011, Plaintiff filed an "objection/response of denying Plaintiff's Rule 56(f) motion [without] prejudice (for the record for appellate review)." (Doc. 149.) Plaintiff asserted that at least one hour and 47 minutes of Target video surveillance had been withheld by Defendants, and the subpoena he served on Target to obtain this and other evidence was quashed by the Court. (Doc. 149, p. 2, 7.) As a result, Plaintiff asserted that he has been prevented from a meaningful opportunity to discover the video surveillance he believes exists but has not been provided to him. (Doc. 149, p. 2.)
Plaintiff also asserted that he has outstanding medical bills, has suffered a loss of property, and has continuing medical needs, ostensibly as a result of Defendants' alleged conduct on March 3, 2008. (Doc. 149, p. 4 ("Plaintiff has outstanding medical bills, loss of property[,] and continual medical needs, and that alone would defeat summary judgment.").) He cited his "huge disadvantages" in litigating his case without the assistance of an attorney, and asserted that he does not have the funds to have a specialist opine as to his March 3, 2008, injury. (Doc. 149, p. 6.) Plaintiff also pointed to his limited law-library access as evidence of his difficulty litigating his case. (Doc. 149, p. 11.)
On March 14, 2011, Defendants filed responses to Plaintiff's March 2, 2011, "objection/response" asserting that, to the extent the filing represented a renewed Rule 56(f) motion, it was insufficient and should be denied. (Docs. 150, 151.)
On May 4, 2011, Heller and Wheatly submitted a supplemental memorandum of points and authorities in support of their motion for summary judgment. (Docs. 155, 156.) They asserted that Plaintiff's deposition was completed on April 12, 2011, and submitted portions of the deposition transcript indicating that Plaintiff declined pain medication at the emergency room upon receiving medical treatment for his injuries arising out of the events that occurred on March 3, 2008.*fn5
On May 12, 2011, Defendant Barrios also filed a supplemental memorandum of points and authorities in support of his motion for summary judgment, which referenced portions of Plaintiff's April 12, 2011, deposition indicating that Plaintiff declined pain medication upon receiving medical treatment for his injuries arising out of the events that occurred on March 3, 2008. (Doc. 160.)
On May 17, 2011, Plaintiff filed a motion for a 60-day extension of time to respond to these supplemental memoranda. (Doc. 162.) On July 26, 2011, the Court issued an order determining that, pursuant to Marella v. Terhune, 568 F.3d 1024 (9th Cir. 2009), the supplemental briefing submitted by Defendants in support of their motions for summary judgment (Docs. 155, 156, 160) injected renewed uncertainty and complexity such that a new notice to Plaintiff pursuant to Rand v. Roland, 154 F.3d 952, 955 (9th Cir. 1998) was required. (Doc. 168.) As such, the Court furnished Plaintiff with Rand notice containing information regarding the requirements of the summary judgment rule.
In addition, because Plaintiff had been provided a new Rand notice, the Court determined it was appropriate that Plaintiff have an opportunity to submit amended or supplemental briefs in opposition to the motions for summary judgment and present any evidence Plaintiff had to support his position. (Doc. 168, 6:5-13.) On August 18, 2011, Plaintiff filed a supplemental opposition to Defendants' motions for summary judgment. (Doc 169.)
On September 14, 2011, Chief District Judge Anthony Ishii issued an order indicating that, due to the retirement of Senior District Judge Oliver Wanger, the assignment of this case to Judge Wanger was withdrawn. (Doc. 171.) The action remained assigned only to the Magistrate Judge, and the parties were directed to file consent forms indicating whether they were willing to consent to the jurisdiction of the Magistrate Judge. (Doc. 171.) All the parties consented (Docs. 172, 173, 175), and the case was assigned to the docket of Magistrate Judge Sheila K. Oberto for all purposes including trial and entry of judgment. (Doc. 178.)
On October 18, 2011, Plaintiff filed a "notice of Plaintiff's Continual Medical Ongoing Treatment to Date" in support of his supplemental opposition to Defendants' motions for summary judgment. (Doc. 177.)
A. Plaintiff's Rule 56(f) Motions
1. The Parties' Arguments and Procedural Background
In opposition to Heller and Wheatly's motion for summary judgment, Plaintiff filed a brief on July 21, 2010, asserting that the motion was premature. (Doc. 100 at 6:3-5 ("In this instance, it seems to this plaintiff that the  moving party(ies) [sic] had prematurely submitted this motion for summary judgment."), 7:11-13 ("[P]laintiff has YET to be afforded any type of dis[covery] as a matter of [l]aw, and that in itself is [a] basis for defendants' [m]otion for summary judgment to be denied."), 16:9-11 ("Wherefore, Plaintiff contends that he has a right for discovery prior to summary judgment . . . .").)
As a result of the lack of discovery, Plaintiff asserted that Defendants were not yet aware of his current medical needs that arose due to the injury he suffered on March 3, 2008. (Doc. 100, 12:14-20 ("This delay not only caused further injury, but this injury plaintiff [sic] has suffered with continual treatment, medical, vision issues, property loss, emotional, mental issues, and a host of other issues . . . . They have yet to view plaintiff's continual [m]edical needs at this or any other treatment.").) Plaintiff also pointed to evidence that he believed, if he were permitted time to obtain it through discovery, would defeat Defendants' motion for summary judgment, including the missing video of the alleged assault, dental records, evidence that his glasses were broken during the assault, evidence of a mental condition following the assault, and continual medical treatment. (Doc. 100, 7:14-18.) Plaintiff also complains that, although Defendant Wheatly filed a declaration in support of his motion for summary judgment stating that he, Wheatly, was not present at the Target store on the night of the alleged events (Doc. 96, ¶ 3), Plaintiff has been unable to conduct any discovery to determine the identity of the supervisor actually present at the Target store if Wheatly was not present (Doc. 100, 16:24-27).
With regard to Defendant Barrios' motion for summary judgment that was filed on September 16, 2010, Plaintiff filed an opposition on January 24, 2011. (Doc. 140.) In his opposition, Plaintiff requested the following:
Plaintiff wants to point out with emphasis that Defendant Barrios's Motion to Summary [Judgment] mirrors Defendants' [sic] Wheatly and Heller['s] Motion for Summary [Judgment] which this Plaintiff fully responded and a copy x 2 was also served upon Defendant Barrios.
Plaintiff would request the Court note that the opposition to Wheatly's and Heller's Motion for Summary [Judgment] is indeed a mirror of opposition and the same exact opposition argument would apply. So Plaintiff would request the Court note and use the same opposition (legal theory) in opposition to Barrios' Motion. (Doc. 140, p. 2.)
Heller and Wheatly filed a reply brief stating that, although Plaintiff may not have had an opportunity to seek discovery prior to the filing of the motion for summary judgment, no further discovery is necessary because there is "nothing in Defendant[s'] possession that would support plaintiff's claim." (Doc. 109, 3:1-2.) Moreover, Defendants asserted that it is undisputed that once Plaintiff arrived at the Emergency Department on March 3, 2008, his level of acuity was designated as "non-urgent." (Doc. 109, 2:10-12.) Thus, Plaintiff's medical condition was "non-serious." (See Doc. 109, 2:13-14 ("Evidencing the non-serious medical condition, Plaintiff waited an additional 44 minutes before he received a sling.").) Additionally, Defendants contended that no further discovery is necessary because all surveillance video has been produced, and a complete copy of the Target report, as well as the police report, are in Plaintiff's possession. (Doc. 109, 3:1-3.) Defendants noted that Plaintiff's medical records are accessible to him and he has had an opportunity to produce those records but has not done so. (Doc. 109, 3:7-9 ("Had there been any medical record or any qualified medical opinion that would support plaintiff's claim that the delay resulted in further significant injury it should be produced.").)
On February 11, 2011, the Court issued an order construing Plaintiff's oppositions to each of the motions for summary judgment as containing Rule 56(f) motions. (Doc. 147.) The Court determined that Plaintiff's Rule 56(f) motions were insufficient because they did not identify how the facts or evidence Plaintiff asserted he lacked would preclude Defendants' motions. In doing so, however, the Court noted that the summary judgment motions were filed "before [Plaintiff] had any realistic opportunity to pursue discovery relating to [his] theory of the case" and allowed Plaintiff an opportunity to renew his 56(f) motion. At the time of the February 11, 2011, order, discovery had been open for approximately 6 months, and the Court determined that Plaintiff was better positioned to ascertain what evidence had been or was likely to be discovered that was necessary to oppose Defendants' motions for summary judgment. Therefore, after providing Plaintiff with the applicable standards for filing a Rule ...