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Anthony Jones v. Toft

September 4, 2012

ANTHONY JONES, PLAINTIFF,
v.
TOFT, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending before the court are defendant Blum's and defendant Toft's motions for summary judgment. Dckt. Nos. 47, 57. For the reasons that follow, both motions must be denied.

I. Background

This action proceeds on the verified amended complaint filed July 28, 2011. Dckt. No. 38. Plaintiff alleges:

On or about March 9th, 2009, Plaintiff, Anthony Jones, was brought to Mercy San Juan Medical Center in order to be treated for multiple shotgun, and dog bite wounds. Some time later, Plaintiff . . . was told that he would need surgery in order to have a shotgun pellet removed from his face. Plaintiff was told that this surgery was needed because the pellet had severed a facial nerve, and if removed, it was possible that said nerve could grow back. As it was, Plaintiff was partially paralyzed because of said pellet, so Plaintiff agreed to undergo surgery.

According to hospital records, a Dr. Blum was the primary surgean [sic], and a Dr. Toft was assistant surgeon. . . .

Plaintiff underwent surgery, and was subsequently sent to Sacramento County Main Jail. Plaintiff had complained to medical staff about severe facial pain, and a lump in his left facial cheek, but was only given pain medication and told that there's nothing inside of his face.

Plaintiff arrived at CDCR June 3, 2010. On or about the 10th of June, 2010, Plaintiff was taken to a public hospital from Deuel Vocational Institution after suffering a seizure, and hitting his head. At said hospital, Plaintiff was given a CAT scan of his head and neck areas. Several days afterwards, Plaintiff was seen by a Dr. Mallet, at D.V.I. whereupon, Dr. Mallet told Plaintiff that there is a "bullet" in Plaintiff's face. It was at this time that Plaintiff realized that doctors Blum, and Toft had violated his 8th Constitutional Amendment [sic]. *** According to hospital records, it was documented that the "bullet" was removed, and there were no complications during surgery. . . . Plaintiff suffers daily from the pain, and nerve damage in his face, and has been on pain and nerve damage medications. *** Plaintiff contends that Defendants acted with malice, and were spiteful. For, the main reason for the surgery was to remove the pellet, thus why else would they leave the pellet to continue doing its damage? Plaintiff's face was cut open from right in front of the left ear, and the ear was partially severed from its foundation. This ear was not sewed back in place properly. Also, there was massive blood stuck in Plaintiff's ear from the surgery, and as a result of Defendants' sewing Plaintiff's ear on wrong, and not draining the ear, Plaintiff has suffered several ear infections, and pain at the bottom of said ear.

Plaintiff contends that Defendants' actions fell well below carrying out their responsibilities as surgeons. Plaintiff further contends that Defendants' actions or omissions had to have been deliberate, as the main reason for said surgery was to remove the shotgun pellet, and one or both of them reported that said pellet was, in fact, removed. .

Plaintiff contends that Defendants knew of and even attempted to clean their hands of the violations. On the "Surgeone's [sic] Operative Note," neither Dr. Blum nor Dr. Toft put their signature on the bottom of the document where the signature is required.

Id. at 1-4. In sum, plaintiff contends that a single shotgun pellet was lodged in his face, that defendants failed to remove it while representing that they had removed it, and that defendants botched the suturing of his surgical incision.

According to defendants, plaintiff arrived at Mercy San Juan Medical Center on March 9, 2009 with a shotgun wound to the face and neck. Dckt. No. 47-2, Def. Blum's Separate Statement of Undisputed Material Facts ISO Def. Blum's Mot. for Summ. J. (hereinafter "Blum UMF") 1; Dckt. No. 57-2, Def. Toft's Separate Statement of Undisputed Material Facts ISO Def. Toft's Mot. for Summ. J. (hereinafter "Toft UMF") 1. A Dr. Owens, who evaluated plaintiff at admission, wrote on his report that plaintiff had been shot in the face and left posterior neck and that his face showed swelling in his left cheek and poor control of his left facial nerve. Blum UMF 2. A CT scan revealed a fracture of the left zygomatic arch, a bullet fragment below the arch, and a bullet fragment behind the left mandibular condyle (rather than a single intact bullet or pellet, as plaintiff alleges). Blum UMF 3; Toft UMF 3. Defendant Toft examined plaintiff and noted that he suffered from complete left facial paralysis. Blum UMF 4; Toft UMF 4. Defendant Blum performed a left partial parotidectomy with facial nerve dissection, removal of bullet fragment, and open reduction of the zygomatic fracture with defendant Toft assisting. Blum UMF 5; Toft UMF 5. One bullet fragment was removed from the junction of the uper and lower divisions of the facial nerve and the zygomatic fracture was supported. Blum UMF 6-9; Toft UMF 6. During surgery defendant Blum stimulated the facial nerve. Blum UMF 7. Plaintiff's face did not react, and no positive EMG tracing occurred on the facial nerve monitor. Id. Plaintiff was discharged the following day in stable condition. Blum UMF 9-10; Toft UMF 7.

II. Summary Judgment Standards

Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment avoids unnecessary trials in cases in which the parties do not dispute the facts relevant to the determination of the issues in the case, or in which there is insufficient evidence for a jury to determine those facts in favor of the non-movant. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471-72 (9th Cir. 1994). At bottom, a summary judgment motion asks whether the evidence presents a sufficient disagreement to require submission to a jury.

The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims or defenses. Celotex Cop. v. Catrett, 477 U.S. 317, 323-24 (1986). Thus, the rule functions to "'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Procedurally, under summary judgment practice, the moving party bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). If the moving party meets its burden with a properly supported ...


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