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Michael C. Hester v. Lee Baca

June 1, 2012

MICHAEL C. HESTER,
PLAINTIFF,
v.
LEE BACA, SHERIFF'S DEPT., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

Plaintiff, a state prisoner, filed this civil rights action pursuant to 42 U.S.C. section 1983 on October 27, 2010. The original Complaint named as Defendants Los Angeles County Sheriff Lee Baca, Sheriff's deputies Flores and Sparks, and "unknown Twin-Towers Clinic Nurses," all sued in their official capacities only. The original Complaint alleged that, during Plaintiff's period of incarceration at the Los Angeles County Jail Twin Towers Facility, Defendants Sparks and Flores exhibited deliberate indifference to Plaintiff's need for a lower bunk assignment due to Plaintiff's hip condition.

On November 3, 2010, the Court issued a Memorandum and Order dismissing the Complaint with leave to amend. On November 17, 2010, Plaintiff filed a First Amended Complaint naming deputies Sparks and Flores as Defendants.

On November 29, 2010, the Court issued a Memorandum and Order dismissing the First Amended Complaint with leave to amend. On December 20, 2010, Plaintiff filed a Second Amended Complaint, naming deputies Sparks and Flores as Defendants in their individual capacities only.

On December 22, 2010, the Magistrate Judge issued an Order directing service of the Second Amended Complaint by the United States Marshals Service on Defendants Sparks and Flores. On February 23, 2011, Defendant Sparks filed a Motion to Dismiss the Second Amended Complaint. On March 15, 2011, the Court denied Defendant Sparks' Motion to Dismiss. On April 12, 2011, Defendant Sparks filed an Answer to the Second Amended Complaint.

On April 13, 2011, the Magistrate Judge issued an Order setting September 2, 2011, as the discovery cut-off date and October 14, 2011, as the deadline for adding additional parties and for filing summary judgment motions.

On April 18, 2011, Plaintiff filed a Motion for Summary Judgment against Defendant Flores. On April 22, 2011, the Court denied Plaintiff's Motion for Summary Judgment without prejudice.

On May 11, 2011, Plaintiff filed a "Notice of Motion to Request to Join Additional Parties, etc." On May 16, 2011, the Magistrate Judge ordered Plaintiff to file a Proposed Third Amended Complaint containing all claims Plaintiff desired to raise in the action, including any claims against the proposed new Defendants whom Plaintiff sought to add. On June 14, 2011, Plaintiff filed a Proposed Third Amended Complaint which did not state clearly whom Plaintiff intended to sue. Therefore, on June 17, 2011, the Magistrate Judge denied Plaintiff's request to join additional parties.

On August 31, 2011, the Magistrate Judge received from Plaintiff a proposed "3rd Amended Complaint," asserting claims against Defendant Sparks and a new Defendant, jail nurse Evangelina Serrano.*fn1 On September 1, 2011 the Magistrate Judge issued a Minute Order construing the proposed "3rd Amended Complaint" to imply a motion for leave to file a Third Amended Complaint and granting Defendant Sparks leave to file a response to the Motion.

On October 11, 2011, Plaintiff filed a "Motion Requesting Leave to Amend 3rd Amended 42 USC 1983 Complaint, etc." Attached to this Motion was a document titled "3rd Amend. Complaint, and Leave to Amend," which was virtually identical to the previously filed proposed "3rd Amended Complaint," except that the new document did not contain the exhibits attached to the previously filed proposed "3rd Amended Complaint." On October 14, 2011, Defendant Sparks filed an Opposition to Plaintiff's motion to amend.

On October 24, 2011, the Court issued an "Order Granting Leave to File Third Amended Complaint," permitting the filing of the "3rd Amended Complaint" received on August 29, 2011, conditioned on extensions of the discovery and summary judgment cut-off dates to February 17, 2012, and March 23, 2012, respectively. The Third Amended Complaint was filed on October 24, 2011. Also on that date, the Court issued an "Order Directing of Service of Process, etc.," directing service of process by the United States Marshal on Defendant Serrano.

On November 21, 2011, Defendant Sparks filed an Answer to the Third Amended Complaint. On December 9, 2011, Defendant Serrano filed an Answer to the Third Amended Complaint.

On February 9, 2012, Plaintiff filed a verified Motion for Summary Judgment ("Motion"), accompanied by a "Declaration in Support of F.R.C.P. 56(e)(1) Summary Judgment" ("Plaintiff's Declaration").*fn2 On March 12, 2012, Defendants filed an Opposition to the Motion, accompanied by the Declarations of Defendants Sparks, the Declaration of Defendant Serrano ("Serrano Dec."), the Declaration of Defendant's counsel Richard Houle ("Houle Dec."), the Declaration of Deputy Sheriff Maurice Jolliff ("Jolliff Dec."), and exhibits.*fn3

On March 12, 2012, Plaintiff filed a verified document titled "Additional Documents Obtained 3/7/2012, etc.," accompanied by exhibits ("Plaintiff's Additional Documents").

On March 20, 2012, Defendants Serrano and Sparks filed a motion for summary judgment. Also on March 20, 2012, Plaintiff filed a "Declaration in Support of F.R.C.P. 56(f) E. Serrano's Actions Were Inappropriate as an RN" ("Plaintiff's Second Declaration").

On March 21, 2012, the Magistrate Judge issued a Minute Order inter alia advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999). Also on March 21, 2012, Plaintiff filed a document titled "Rule 56(E)(1)

Personal Knowledge Motion, and Request for Summary Judgment." On that date, the Magistrate Judge issued a Minute Order deeming Plaintiff's "Rule 56(E)(1) Personal Knowledge Motion, etc." to be a supplemental memorandum in support of Plaintiff's motion, but indicating that, because the document was identical in substance to the motion Plaintiff filed on February 9, 2012, there was no need for Defendants to respond to the new document.

On April 18, 2012, Plaintiff filed "Petitioner's [sic] Notice of Motion, in Opposition to Defendants' Motion Requesting Fed. Rule. Civ. Proc. (56)," constituting Plaintiff's Opposition to Defendant's Motion ("Plaintiff's Opposition"). On April 19, 2012, Defendants filed the signature page to the Declaration of Defendant Sparks submitted in opposition to Plaintiff's Motion.

SUMMARY OF PLAINTIFF'S ALLEGATIONS

In his verified Third Amended Complaint, Plaintiff alleges the following:

On or about April 22, 2009, Plaintiff arrived at the Twin Towers One "DMH" Medical Facility (Third Amended Complaint ["TAC"], p. 5). On April 23, 2009, Defendant Serrano, a nurse, performed a medical evaluation and documented Plaintiff's "reconstructed" left hip and leg. Serrano told Plaintiff that she had informed Defendant Sparks and Deputy Flores (no longer a Defendant) that Plaintiff needed a lower bunk (id.). However, even after Plaintiff complained of pain while climbing to the top bunk and showed Sparks the surgery scar on his leg, Defendant Sparks assigned Plaintiff to an upper bunk (id.).

Defendant Serrano "failed to disclose a lower-bunk medical chrono, held by [Plaintiff] for inquisitive deputy security bunk assignment checks" (id.). Serrano "failed to disclose low-bunk chrono held in [Plaintiff's] possession for proof of serious med. need" (id., p. 3).

Plaintiff allegedly remained on top-bunk status until November 2009, when his hip and leg gave out and he fell from the bunk to the concrete floor (id., pp. 3, 6). Plaintiff gouged his left eye on a metal table and stool, received a golf-ball-sized knot on his forehead and injured his hip (id.). Surgeons could not save the injured eye (id.). Plaintiff's left hip screws are out of adjustment, his leg swells, his circulation is damaged, and he experiences numbness and pain in his left extremities (id.). Plaintiff now suffers from dizziness and an occasional foggy memory (id.).

Plaintiff alleges that Defendants were deliberately indifferent to Plaintiff's allegedly serious medical need for a lower bunk, and seeks damages and injunctive relief (id., p. 6).*fn4

Plaintiff attaches to the Third Amended Complaint various documents, including:

1. an "LAC儠 Medical Center Live SINGLE ASSESSMENT," dated December 14, 2009, recording that Plaintiff had been admitted to the hospital on November 29, 2009, after a fall from his bunk, and had ...


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