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Anthony Jones v. Toft

November 26, 2012

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



ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. He claims that the defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights when he was being treated for multiple shotgun wounds. The court previously denied motions for summary judgment by defendants Blum and Toft due in large part to their failure to substantively address the evidence submitted by plaintiff that, contrary to the defendants' assertions, they did not remove the disputed pellet (at times referred to in the medical records as "bullet" fragment) from his face. Defendants filed new summary judgment motions, accompanied by supplemental expert declarations. Dckt. Nos. 95, 96. Plaintiff has requested an extension of time to respond to the summary judgment motions, Dckt. No. 102, and seeks appointment of medical experts. Dckt. Nos. 82, 104. Plaintiff additionally asks the court to subpoena certain evidence from third parties on his behalf. Dckt. Nos. 103. The crux of plaintiff's requests is that he needs access to certain medical facts and evidence to be able to meaningfully respond to the motion.

For the reasons stated below, the court construes plaintiff's requests to include a request to deny or continue the summary judgment motions pursuant to Federal Rule of Civil Procedure 56(d) to enable him time to obtain declarations and/or take discovery necessary to oppose the motions. As discussed below, the court grants plaintiff's requests for a neutral medical expert and denies defendants' motions for summary judgment Rule 56(d) without prejudice to subsequent renewal upon review of the neutral medical expert's report and any further discovery. The court denies plaintiff's requests for subpoenas and ammunition and radiology experts.

I. Background

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

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 defendants: (1) failed to remove a bullet, pellet, or fragment thereof from his cheek while representing that they had removed it and (2) botched the surgical incision.

Defendants previously moved for summary judgment. Dckt. Nos. 47, 57. On September 26, 2012, the district court denied those motions without prejudice, adopting the September 4, 2012 recommendations of the undersigned. Dckt. Nos. 91, 83. The court concluded that summary judgment could not be granted because defendants' experts had offered no opinion regarding plaintiff's claim that defendants did not make and/or suture the surgical incision properly. Dckt. No. 83 at 9-10. The court further noted that plaintiff had submitted supplemental oppositions to the summary judgment motions to which he attached an x-ray report from March 6, 2012 that could support plaintiff's claim that defendants' did not remove the pellet from his face that they claimed they had. Id. Defendants did not substantively respond to that evidence. The court gave defendants an opportunity to file new summary judgment motions to address plaintiff's surgical incision claim and the x-ray report. Id. at 10; Dckt. No. 91.

On October 26, 2012, defendants filed new summary judgment motions, accompanied by supplemental expert declarations. Dckt. Nos. 95, 96. Plaintiff seeks appointment of experts and an extension of time to respond to those motions. Dckt. Nos. 82, 102, 104. Plaintiff additionally asks the court to subpoena certain evidence from third parties on his behalf. Dckt. Nos. 102, 103.

II. Appointment of Expert

Under 28 U.S.C. ยง 1915, federal courts may permit an indigent party to file suit without prepaying fees and costs. That statute does not authorize courts to subsidize expert fees, however. Hadsell v. IRS, 107 F.3d 750, 752 (9th Cir. 1997) (relying on Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam)). Plaintiff asks the court to appoint a medical expert on his behalf to support his opposition to ...


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