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Michael C. Hester v. Lee Baca

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


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 been evaluated and treated for an eyelid laceration;

2. pages purportedly recording Plaintiff's various medications in December 2009;

3. hospital documents concerning Plaintiff's eye surgery, including discharge documents;

4. a page from a Los Angeles County Sheriff's Department "Inmate Medical Documentation" form, recording a doctor's examination of Plaintiff's eye on December 9, 2009, and reporting Plaintiff's complaints of eye pain;

5. documents suggesting Plaintiff did not appear at his appointment for suture removal in connection with the eyelid repair;*fn5

6. A Los Angeles County Sheriff's Department "*Confidential* Medical/Mental Health Transfer summary," identifying the "sending facility" as "TTCF ONE," the "transfer destination" as "NKSP #2,"*fn6 and bearing the stamp of Defendant Serrano; the document indicates it was "completed" on December 14, 2009, and records Plaintiff's diagnosis as including "head surgery - plates/titanium" and a 2003 "L hip and thigh"; the document also states that a chest x-ray screening on April 23, 2009, was negative;

7. a page from an "inpatient operation report" concerning Plaintiff's 2001 head surgery;

8. a document titled "physician's orders," dated December 23, 2009, recording Plaintiff's medications in prison;

9. a California Department of Corrections and Rehabilitation ("CDCR") "Comprehensive Accommodation Chrono," dated September 28, 2010, indicating Plaintiff should receive a lower bunk; and

10. two documents titled CDCR "Medical Classification Chrono," dated December 1, 2010, and June 6, 2011, concerning Plaintiff's alleged limitations and restrictions in prison, and recording that Plaintiff was "Restricted - No Stairs."

STANDARDS GOVERNING SUMMARY JUDGMENT

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only show that there is an absence of evidence to support the non-moving party's case. In re Oracle Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). If the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. "This burden is not a light one." Id. The non-moving party must show more than the mere existence of a "scintilla" of evidence. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). The non-moving party must do more than show there is some "metaphysical doubt" as to the material facts at issue. Id. (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor." Id. (citation omitted).

Additionally, because Plaintiff bears the burden of proof at trial, to obtain summary judgment on his motion Plaintiff must produce evidence sufficient for the Court to hold that no reasonable trier of fact could find other than for Plaintiff. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 63 F. Supp. 2d 1145, 1153 (C.D. Cal. 1999), aff'd, 370 F.3d 869 (9th Cir. 2004); In re Williams, 50 F. Supp. 2d 951, 955-56 (C.D. Cal. 1999); see also Albee Tomato. Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir. 1998) (where moving party bears burden of proof, "its own submissions in support of the motion must entitle it to judgment as a matter of law [citation]"); Torres Vargas v. Santiago Cummings, 149 F.3d 29, 35 (1st Cir. 1998) (party with burden of proof on issue cannot obtain summary judgment "unless the evidence that he provides on that issue is conclusive [citation]"); Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986); W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984). Plaintiff "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in that party's favor." In re Williams, 50 F. Supp. 2d at 956 (citation omitted; original emphasis). "'The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'" United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson V. Liberty Lobby, Inc., 477 U.S. at 252).

Where, as here, both the plaintiff and the defendant move for summary judgment, the Court must determine whether the parties' submissions demonstrate the existence of a genuine issue for trial. See United States V. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978) ("well settled" that the filing of cross-motions for summary judgment "does not vitiate the court's responsibility to determine whether disputed issues of material fact are present"). The Court must consider the evidence identified and submitted in support of, and in opposition to, both motions. See Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001).

The Court may consider verified pleadings and memoranda to the extent that these documents contain nonconclusory factual assertions based on personal knowledge. See Lopez v. Country Ins. & Fin. Servs., 252 Fed. App'x 142, 144 n.2 (9th Cir. 2007) (where pro se plaintiff signs pleadings or motions under penalty of perjury, district court must treat the pleadings and motions as evidence for purposes of summary judgment); Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995) (sworn complaint); Medina v. Donahoe, ____ F. Supp. 2d ____, 2012 WL 610414, at *1 (N.D. Cal. Feb. 23, 2012) (sworn opposition).

The Court must "view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc., 476 F.3d 781, 784 (9th Cir. 2007). Where different ultimate inferences reasonably can be drawn, summary judgment is inappropriate. Miller v. Glenn Miller Productions, Inc., 454 F.3d 975, 988 (9th Cir. 2006).

A factual dispute is "genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A factual dispute is "material" only if it might affect the outcome of the lawsuit under governing law. Id.

SUMMARY OF EVIDENCE

I. Defendants' Evidence

A. Declaration of Stephanie Sparks

Defendant Sparks' original declaration was neither signed nor dated. As indicated above, on April 19, 2012, Defendants filed a signed declaration of Defendant Sparks. The signature page does not bear a date, however. Section 1746 of Title 28, United States Code, allows a person to verify a document in "substantially" the following form: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)." The lack of a specific date is not fatal if the Court can determine the approximate date. See Peters v. Lincoln Elec. Co., 285 F.3d 456, 475-76 (6th Cir. 2002) ("courts have held that the absence of a date . . . does not render [a declaration] invalid if extrinsic evidence could demonstrate the period when the document was signed"); Peiszak v. Glendale Adventists Med. Center, 112 F. Supp. 2d 970, 999 (C.D. Cal. 2000) ("[f]or a declaration to be admissible, a party need only show the execution date or approximate date (depending on the situation)") (citation, quotations and brackets omitted); Equal Employment Opportunity Commission v. World's Finest Chocolate, Inc., 701 F. Supp. 637 (N.D. Ill. 1988). Here, the Court can determine with reasonable accuracy the approximate date Sparks signed the declaration, which was sometime between March 20, 2012, the date Defendants filed their motion accompanied by Sparks' unsigned declaration, and April 17, 2012, the date Defendants served the "Notice of Filing Signature Page, etc." accompanied by Sparks' signed declaration. Hence, the Court will consider Sparks' signed declaration.

In her declaration, Sparks states that she was a custodial deputy at the Twin Towers Correctional Facility from April 2009 through December 2009 (Sparks' Dec., ¶ l). She declares, "I do not recall Plaintiff from 2009" (id., ¶ 3). According to Sparks, the Sheriff's Department has a policy for assigning inmates to their bunks based on medical conditions (id., ¶ 4). Sparks states that, in the absence of a medical order or court order for bunk assignment, deputies may exercise their discretion in assigning bunks, and will try to accommodate an inmate's bunk request, if possible, depending on the size of the jail population and bunk availability (id.). Sparks allegedly does not recall that any inmate made a specific request in 2009 for a lower bunk due to asserted medical problems in climbing to an upper bunk (id.) Sparks allegedly does not recall any inmate with a visible physical impairment that purportedly prevented the inmate from climbing to an upper bunk (id.).

Sparks states that at no time in 2009 was she ever made aware of, or given any knowledge about, any medical or court order stating that Plaintiff was to be assigned to a lower bunk due to medical problems with his left hip and leg, or for any reason (id., ¶ 5). Sparks states that she did not knowingly violate any such order (id.).

Sparks also states that she is unaware of any medical or court order in the possession of Defendant Serrano calling for Plaintiff's assignment to a lower bunk, and is unaware that Serrano had any information by which Sparks could exercise her discretion to assign Plaintiff a lower bunk (id., ¶ 6).

B. Declaration of Evangelina Serrano

In her declaration, Serrano states that she was employed at the Twin Towers Correctional Facility as a registered nurse during the period of Plaintiff's incarceration at that facility (Serrano Dec., ¶ 1). Serrano allegedly does not recall making any medical order for Plaintiff's assignment to a lower bunk (id., ¶ 3). She allegedly did not tell any deputy to assign Plaintiff a lower bunk (id., ¶ 4). According to Serrano, only a physician can make such an order, and no such order by anyone else is contained in Plaintiff's medical jail records (id.).

Serrano states that she is unaware of any record among Plaintiff's medical records showing that she performed an initial intake medical screening for Plaintiff on April 22, 2009, or issued an order for a lower bunk (id., ¶ 5). Serrano believes the only "substantive medical record" showing her involvement with Plaintiff's incarceration is the December 14, 2009 Medical/Mental Health Transfer Summary, in which Serrano listed Plaintiff's medical condition and diagnosis for his transfer to state prison (id., ¶ 6). Serrano states that this "Transfer Summary" is not a medical order, and was not a medical order issued by her in April 2009 for Plaintiff's assignment to a lower bunk (id.).

C. Declaration of Maurice Jolliff

Jolliff, reportedly a deputy assigned to "Operations/Legal" at the Twin Towers Correctional Facility, assertedly has the authority to certify records for the Sheriff's Department (Jolliff Dec., ¶ 1). Jolliff states that a search for any court orders requiring Plaintiff's assignment to a lower bunk did not reveal any such order (id., ¶ 4). A check of Plaintiff's medical records also revealed no order that Plaintiff be assigned to a lower bunk (id.).

D. Defendants' Exhibit

In her Answer, Defendant Serrano affirmatively alleges that, when Plaintiff was arrested and booked on April 22, 2009, Serrano "appropriately documented the medical conditions which plaintiff had at that time" (Answer of Defendant Serrano to Third Amended Complaint, ¶ 4). Defendants have submitted a "Los Angeles County Sheriff's Department Inmate Medical Documentation Form," recording among other things that, on April 23, 2009, staff nurse Azores (not Defendant Serrano) examined Plaintiff (Houle Dec., Ex. 1). Azores allegedly noted that Plaintiff had seven plates in his head and titanium in his jaw (id.). Azores recorded that Plaintiff had had surgery on his left hip and thigh in 2003, and had plastic in his left hip and thigh (id.). Azores recorded that Plaintiff denied any pain or discomfort (id.). Plaintiff allegedly "walked with a steady gait" (id.). The form reflects other medical examinations during 2009, but does not indicate that Serrano was involved in any of those other examinations (id.).

II. Plaintiff's Evidence

In addition to his verified Third Amended Complaint, Plaintiff has submitted the following evidence:

A. Plaintiff's Motion and Attached Exhibits

In his verified Motion, Plaintiff alleges that, assertedly with knowledge of Plaintiff's medical needs, both Defendants failed to respond to those needs for eight months (Motion, p. 5). Plaintiff alleges that, at intake on April 22, 2009, Defendant Serrano assertedly documented Plaintiff's reconstructed left leg and hip and allegedly serious medical need for a lower bunk (id., p. 2).*fn7 Serrano also allegedly documented Plaintiff's negative "TB" (tuberculosis) test (id.).*fn8 Serrano allegedly "ordered lower bunk housing for [Plaintiff] via telephonic communication with Twin Towers One, Custody Deputies, Housing Deputy Ms. Sparks verified, and acknowledged the serious medical need to reassign [Plaintiff] to a lower bunk housing, and repeatedly refused to do so after the [Plaintiff] showed the scars from leg surgery to Dep. S. Sparks at morning pain medication pill call" (id.).

According to Plaintiff, Defendant Serrano "having [Plaintiff's] jail medical chart failed to follow-up appropriate housing for [Plaintiff] and failed jail procedures to dispense the hand-held medical chrono for inmates with serious medical needs for lower-bunk housing, (that other inmates possessed.)" (id.). Plaintiff references three documents which he contends are "similar L-Bunk chronos by CDC" (id.).

Plaintiff allegedly was moved to another floor but assigned an upper bunk (id., p. 3). Defendant Sparks allegedly led a "rookie" jailor to believe that Plaintiff did not need an upper bunk (id.). Plaintiff alleges that he "begged and pleaded" with Defendant Sparks for a lower bunk for eight months, but he did not receive a lower bunk until after his December 2009 surgery (id.). Plaintiff alleges that he obeyed the upper bunk order because jail inmates who do not use their assigned bunks assertedly "are immediately placed in solitary confinement or physically beat into submission or both" (id., p. 5).

Plaintiff allegedly suffered numerous injuries as a result of the alleged fall, including a swollen foot, circulation problems in his left hip and leg, and numbness in his left extremities (id., p. 4). Plaintiff also alleges that he suffers headaches and nausea, and must take "powerful T-B medication" (id.).

Plaintiff attaches various exhibits to the Motion, some of which are also attached to the Third Amended Complaint. Exhibits include CDCR medical forms concerning Plaintiff's medical treatment in prison in 2010, a document indicating Plaintiff refused to return to the clinic for suture removal (Plaintiff appears to contest this assertion), records concerning Plaintiff's medications, a document showing Defendant Serrano recorded that Plaintiff refused medication on December 21, 2009 (a report Plaintiff alleges is false), a 2001 doctor's report concerning Plaintiff's operation following a motor vehicle accident, Defendants' Answers, and discovery documents. Some exhibits bear what appear to be handwritten notations by Plaintiff.

B. Plaintiff's Declarations

In Plaintiff's First Declaration, Plaintiff alleges that both Defendants knowingly refused to accommodate Plaintiff's lower bunk request (Plaintiff's First Declaration, pp. 1-2). Plaintiff alleges that, although he assertedly "begged" for a lower bunk, Defendant Serrano assertedly refused Plaintiff a lower bunk chrono after "documenting" Plaintiff's hip and thigh injury (id., p. 1). Serrano allegedly "refused to document the 16 fractured bones [Plaintiff] sustained in the 2001 motorcycle accident[,] claiming the L-hip, L-thigh, 7-titanium skull-plates documented by her in the sheriff's dept. health transferre [sic] summary was [sic] adequate" (id., p. 2). Defendant Sparks allegedly denied Plaintiff equal protection by refusing to place Plaintiff in safe housing conditions, while assertedly knowing Plaintiff's medical conditions, and by refusing to "follow-up" Defendant Serrano's asserted request to rehouse Plaintiff in a lower bunk (id.).*fn9 Defendant Serrano allegedly falsified a medical report, assertedly by stating falsely that Plaintiff had refused medication (id., p. 2).*fn10

In Plaintiff's Second Declaration, Plaintiff alleges that Defendant Serrano was the supervisor overseeing the nurses' assistants on the day Plaintiff was screened, and that Azores allegedly was only a nurses' assistant with no authority (Plaintiff's Second Declaration, pp. 1-4). Plaintiff alleges that Serrano documented Plaintiff's hip and leg injuries (id.). Plaintiff alleges that, at intake, Plaintiff was informed that Deputy Flores or Defendant Sparks would accommodate Plaintiff's allegedly serious medical need for a lower bunk (id., unpaged document). Although Plaintiff allegedly begged Sparks on numerous occasions for a lower bunk, Sparks assertedly never fulfilled her promise to move plaintiff (id.). Plaintiff also alleges that Serrano falsified a December 21, 2009 transfer document; Plaintiff claims he "never refused" (id., p. 2). Attached to Plaintiff's Second Declaration are various documents previously submitted by Plaintiff, now bearing handwritten annotations. Plaintiff also attaches a copy of the "Inmate Medical Documentation" form, dated April 23, 2009, recording Plaintiff's medical screening and bearing the name of Soledad Azores, Staff Nurse. Defendants also have submitted a copy of this document. However, Plaintiff's copy of the document is annotated with handwritten notations reiterating Plaintiff's allegations that Azores was a nurse assistant and that Serrano was the supervisor who performed the evaluation (id., p. 5).

C. Plaintiff's "Additional Documents"

Plaintiff's "additional documents" include documents concerning Plaintiff's medical condition and treatment in 2011, a partial copy of the "Single Assessment" concerning Plaintiff's hospital treatment in November of 2009, and a court reporter's statement concerning documents requested by Defendants' counsel.

D. Plaintiff's Opposition

Plaintiff states that the Opposition "is made under penalty of perjury" (Plaintiff's Opposition, p. 10). Plaintiff does not aver expressly that the statements in the Opposition are true. However, particularly in light of Plaintiff's pro per status, the Court deems Plaintiff's Opposition to comply substantially with the requirements of section 1746 of Title 28, United States Code. See LeBoeuf, Lamb, Green & McRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (letter which was signed and dated under penalty of perjury, but did not state its contents were true and correct, substantially complied with section 1746). Therefore, the Court will consider the allegations in Plaintiff's Opposition.

Plaintiff's Opposition essentially repeats Plaintiff's prior allegations. Plaintiff denies that he was able to "ambulate onto an upper bunk" (Plaintiff's Opposition, p. 2). Plaintiff again alleges that Defendant Serrano evaluated Plaintiff on April 23, 2009 (id.). Plaintiff alleges that on or about June 10, 2009, as Defendant Sparks purportedly escorted Plaintiff to the clinic, Plaintiff assertedly informed Sparks of Plaintiff's alleged difficulty climbing onto the top bunk and Plaintiffs' "extreme pains" (id., p. 3). On or about June 10, 2009, Sparks allegedly informed Plaintiff that she had received a phone call from the clinic physician (id.). Plaintiff does not allege the supposed content of the call. Plaintiff alleges that his only appointment was with Dr. Byone Yoon, who allegedly had told Plaintiff that he could call and request that Plaintiff be rehoused (id., pp. 3-4). After two and a half hours, Plaintiff allegedly checked with the housing department (id., p. 4). Sparks allegedly informed Plaintiff, in an assertedly hostile manner, that medical staff had advised Sparks to rehouse Plaintiff (id.). Sparks allegedly repeatedly denied Plaintiff's requests for a lower bunk "due to extreme pains climbing onto the upper bunk" (id.). At some point, Sparks allegedly said Plaintiff "could make it another day on top" (id., p. 8). Plaintiff allegedly filed a complaint against Sparks but assertedly received no response (id.). A senior deputy said it was up to the discretion of subordinates to rehouse Plaintiff (id., p. 4).

In November of 2009, Plaintiff allegedly requested a move to a lower bunk (id., p. 9). Plaintiff allegedly pleaded with Defendant Sparks, who assertedly said that, if she moved Plaintiff, other inmates would request bunk changes (id.). Sparks allegedly informed other housing staff there was no need to move Plaintiff to a lower bunk (id.).

Plaintiff attaches to the Opposition various exhibits, including court documents, pages from Defendants' Motion, an "Inmate Complaint/ Services Request Form," dated June 24, 2009, requesting the address and phone number of the Sheriff's Internal Affairs Department, pages from Defendant Sparks' discovery responses, pages from Defendants' Answers, and various medical records. Most of these documents are attached to Plaintiff's previous filings, although the versions attached to the Opposition bear additional handwritten notations.

DISCUSSION

I. Governing Legal Standards

Prison officials can violate a convicted prisoner's Eighth Amendment right to be free of cruel and unusual punishment if they are deliberately indifferent to the prisoner's serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). Plaintiff may have been a pretrial detainee rather than a convicted prisoner at the time of the events here in question. However, the same standards apply to pretrial detainees under the Due Process Clause. See Simmons v. Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003).

"A 'serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the 'unnecessary and wanton infliction of pain.'" McGuckin v. Smith, 974 F.2d at 1059 (citation omitted); see also Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc) (examples of "serious medical needs" include "a medical condition that significantly affects an individual's daily activities," and "the existence of chronic and substantial pain"; citation and internal quotations omitted).

To show deliberate indifference, a plaintiff must show that prison officials knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. at 837. The official must have been aware of facts from which the inference could be drawn that a substantial risk of serious harm existed, and must have also drawn the inference. Id. Thus, inadequate treatment due to accident, mistake, inadvertence, or even gross negligence does not amount to a constitutional violation. Estelle v. Gamble, 429 U.S. at 105-06; McGuckin v. Smith, 974 F.2d at 1060; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).

II. Discussion

For the following reasons, Defendants are entitled to summary judgment. Plaintiff's evidence, even if credited, fails to demonstrate that either Defendant Serrano or Defendant Sparks was deliberately indifferent to a serious risk of harm to Plaintiff.

Plaintiff appears to allege the existence of a medical order or "chrono" assigning Plaintiff to a lower bunk, but has produced no document constituting or reflecting any such alleged order. See United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) ("a conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact") (citations and internal quotations omitted); see also Coapland v. Long, ____ Fed. App'x ____, 2012 WL 8664, at *1 (9th Cir. Jan. 3, 2012) (prisoner's own unsupported and self-serving allegations that prison official knew identity of person who allegedly assaulted prisoner insufficient to withstand summary judgment). Plaintiff's allegation that the California Department of Corrections and Rehabilitation later provided Plaintiff a lower bunk chrono following Plaintiff's transfer to prison does not show that Plaintiff had any lower bunk chrono prior to the events at the jail alleged herein. Documents reflecting allegedly "similar" chronos given to other inmates also are insufficient to raise a triable issue as to Plaintiff.

Plaintiff alleges that Serrano performed an evaluation and documented Plaintiff's left hip and leg condition (TAC, ¶ 5).*fn11

However, Plaintiff's purported evidence that Serrano "documented" Plaintiff's condition at intake in April 2009 is the December 14, 2009 "Single Assessment," which does not show that Serrano documented Plaintiff's condition in April of 2009. That document indicates only that Serrano assessed Plaintiff in November of 2009, before Plaintiff's transfer to state prison. The document does record that Plaintiff received a chest X-ray on April 23, 2009 (which was negative), but the document does not state that Serrano "documented" Plaintiff's medical condition in April of 2009.

In any event, even assuming arguendo the truth of Plaintiff's assertion that Serrano conducted or supervised a screening examination of Plaintiff on April 22 or 23, 2009, Plaintiff states only that Serrano purportedly was made aware of Plaintiff's "reconstructed left leg and hip" and the injuries Plaintiff assertedly sustained in the 2001 accident (Motion, p. 2; Plaintiff's First Declaration, p. 2). Knowledge of an inmate's allegedly "reconstructed left leg and hip," or injuries suffered in an accident some eight years earlier, would not have been sufficient information to cause a prison nurse to infer that the inmate would suffer a substantial risk of serious harm if not assigned to a lower bunk. Plaintiff offers no other evidence that Serrano was or could have been aware of Plaintiff's then-current alleged problems with his leg and hip and allegedly resulting need for a lower bunk. Hence, Plaintiff has failed to meet his burden to show, in support of his summary judgment motion, that no reasonable trier of fact could find other than for Plaintiff. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 63 F. Supp. 2d 1145, 1153 (C.D. Cal. 1999), aff'd, 370 F.3d 869 (9th Cir. 2004). Nor has Plaintiff met his burden to show a genuine issue of material fact for trial sufficient to avoid summary judgment in favor of Defendant Serrano. See In re Oracle Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010); see also Farmer v. Brennan, 511 U.S. at 837 (only if the official subjectively knew of a substantial risk of serious harm to the inmate can the official be held liable for failing to address the risk).

With respect to Defendant Sparks, Plaintiff's allegations that he complained to Sparks concerning pain in climbing to his bunk and that Plaintiff showed Sparks his scar from the prior injury do not demonstrate that Sparks subjectively knew there existed a serious risk of harm to Plaintiff if Plaintiff were not assigned to a lower bunk. A trier of fact reasonably could not conclude that an inmate's mere complaints of pain in climbing to his bunk and his displays of a leg scar would put a prison official on actual notice of a substantial risk of serious harm to the inmate if the inmate were not assigned to a lower bunk.

Plaintiff also contends Serrano told Plaintiff that Serrano had asked Sparks to assign Plaintiff a lower bunk (TAC, p. 5; Motion, p. 2). Serrano states that she "did not tell any deputy to assign plaintiff a lower bunk" (Serrano Dec., ¶ 4). The Court assumes, arguendo, the truth of Plaintiff's contention that Serrano told Plaintiff that Serrano had asked Sparks to assign Plaintiff a lower bunk. As against Sparks, however, Serrano's alleged statement to Plaintiff that Serrano made this request to Sparks is inadmissible hearsay. See Fed. R. Evid. 801-02; see also Fed. R. Civ. P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must . . . set out facts that would be admissible in evidence"); Scosche Industries, Inc. v. Visor Gear Inc., 121 F.3d 675, 680-81 (9th Cir. 1997) (affidavit containing hearsay does not satisfy Rule 56).*fn12

In any event, Plaintiff has produced no evidence of anything specific Serrano supposedly told Sparks concerning any alleged need for a lower bunk. In particular, Plaintiff has produced no evidence that Serrano told Sparks that Plaintiff had any specific serious medical condition which put Plaintiff at any substantial risk of injury if Plaintiff were assigned an upper bunk. Plaintiff also has failed to produce any evidence to controvert Defendants' evidence that, in the absence of a medical order or court order for bunk assignment, deputies could exercise their discretion to try to accommodate an inmate's bunk request. Even crediting Plaintiff's version of events (and putting aside the hearsay problem), one reasonably could not conclude that Serrano's mere request to Sparks to assign Plaintiff a lower bunk sufficed to alert Sparks to any substantial risk of serious harm to Plaintiff if Plaintiff were not assigned a lower bunk.

Plaintiff also asserts that, on or about June 10, 2009, Sparks allegedly informed Plaintiff that medical staff had advised Sparks to "rehouse" Plaintiff (Plaintiff's Opposition, p. 4). Again, Plaintiff does not submit any evidence to show that medical staff gave Sparks any specific information sufficient to alert Sparks to any substantial risk of serious harm to Plaintiff if Sparks did not then "rehouse" Plaintiff with a lower bunk assignment.

In sum, a "fair-minded jury" crediting Plaintiff's evidence reasonably could not conclude that either Defendant subjectively knew of and deliberately disregarded a serious risk of harm to Plaintiff if Plaintiff were assigned an upper bunk. See Brummett v. Teske, 344 Fed. App'x 373, 374 (9th Cir. 2009), cert. denied, 131 S. Ct. 1823 (2011) (affirming summary judgment for defendants where plaintiff failed to show that defendants had actual knowledge that plaintiff's upper bunk assignment posed a substantial risk of serious harm); Walter v. Lancaster State Prison Medical Dep't, 2010 WL 2680535, at *6 (C.D. Cal. May 27, 2010), adopted, 2010 WL 2680537 (C.D. Cal. July 1, 2010) (prisoner who suffered injuries in fall from upper bunk failed to state deliberate indifference claim, where prisoner alleged that he told prison official that his medical condition required assignment to a lower bunk; defendant's failure to check plaintiff's medical file based on plaintiff's statements concerning his medical condition constituted only negligence). At most, Plaintiff's evidence suggests negligence, which is not a constitutional violation. Id.; see Estelle v. Gamble, 429 U.S. at 105-06; Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 2002), cert. denied, 537 U.S. 1106 (2003) ("If a person should have been aware of the risk, but was not, then the person has not violated the Eighth Amendment, no matter how severe the risk.") (citation omitted).

Plaintiff's motion for summary judgment must be denied. Summary judgment is appropriate in favor of Defendants.

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's Motion for Summary Judgment; (3) granting Defendants' Motion for Summary Judgment; and (4) entering Judgment in favor of Defendants.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.


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