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Jose B. Ortiz v. J. Reynolds

January 22, 2013

JOSE B. ORTIZ, PLAINTIFF,
v.
J. REYNOLDS, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. The sole remaining defendant, R. Miranda, moves for summary judgment. Dckt. No. 51. Also pending is defendant's motion to strike two declarations plaintiff has submitted in opposition to the summary judgment motion. Dckt. No. 60. For the reasons explained below, the undersigned recommends that the motion to strike be granted and the motion for summary judgment granted in part.

I. The Complaint

This action proceeds on the amended complaint filed on May 16, 2011. Dckt. No. 21.

That complaint asserts that defendant denied plaintiff adequate medical care in a variety of ways.

Id. at 3-9.*fn1 Plaintiff alleges that defendant is a physician's assistant who is responsible for all inmate medical care at High Desert State Prison ("HDSP") Facility B, where plaintiff is housed. Id. at 2. He says that in the spring of 2008, he was issued a counseling chrono for failing to take medication as directed. Id. at 3, 25. (Plaintiff suffers from degenerative disc disease and received medication to treat the associated pain. Id. at 8.) Plaintiff appealed the chrono, arguing that he could not have committed the infraction because he was on "orientation status" at the time. Id. at 3. Defendant interviewed plaintiff in connection with the appeal in September 25, 2008. Id. at 4. According to the complaint, defendant presented plaintiff with an Opioid Analgesic Treatment Contract and asked plaintiff to sign it, admonishing that "it was the only way plaintiff could continue to receive his pain medication." Id. at 4, 21. Plaintiff was dissatisfied that neither defendant nor any of the other appeals reviewers removed the chrono from his file. Id. at 4-5.

In the meantime, plaintiff was informed by a nurse that he had had an appointment scheduled for August 28, 2008, but, according to plaintiff, "it never happened." Id. at 5. On September 7, 2008, another nurse told him that the appointment had been rescheduled. Id. On September 14, 2008, plaintiff submitted a second appeal, arguing that he had submitted several healthcare request forms but had not yet seen a doctor. Id. at 5 & Ex. B. In response, an appeal reviewer noted that plaintiff had seen defendant on September 25, 2008 and did not have any scheduled appointments. Id. The reviewer noted that, at the appointment, plaintiff "stated [he] understood the treatment plan and [was] satisfied." Id. at 28. Plaintiff states that the September 25th appointment regarded the earlier appeal and did not address the medical issue for which he currently sought an appointment. Id. at 6. Plaintiff contends that defendant erroneously reported that plaintiff was "satisfied" at the September 25th appointment, and this erroneous information prevented plaintiff from being scheduled for another appointment. Id.

On December 1, 2009, defendant presented plaintiff with a new "Pain Management and Controlled Substance Treatment Agreement." Id. at 7. Defendant told plaintiff that if he did not sign the new agreement, he would arrange to discontinue plaintiff's medication completely. Id. at 8. In response to plaintiff's request for an increase in his pain medication dosage, defendant allegedly stated, "if you would let all the appeals go and not push the issues, I could be more flexible in terms of your treatment options." Id. Plaintiff signed the agreement. Id.

Plaintiff received a renewed Gabapentin prescription on February 10, 2010. Id. He received his Gabapentin the following day, but on February 12, 2010, plaintiff was told that the drug "had ran out." Id. It is not clear from the complaint whether plaintiff received Gabapentin between February 12, 2010 and March 18, 2010. On the latter date, plaintiff saw defendant, who informed him that "he was taking away [plaintiff's] medication regardless of the need for chronic pain." Id.

Plaintiff alleges broadly and without any further specificity that Since September 25, 2008, to present, defendant, R. Miranda, have [sic] repeated interferred [sic] with, denied, or delayed performance of medical test [sic] and treatment for plaintiff's medical condition. Said medical test [sic] include, but are not limited to, being seen by a nuerologist [sic], having an MRI done, and other examinations that could have been done by the defendant in the capacity of plaintiff's primary care provider (PCP), to properly address the condition and afford plaintiff the proper medical attention that's supposed to be provided under the Eighth Amendment of the United States Constitution.

Id. at 8-9. Plaintiff further alleges that, since September 25, 2008, defendant has subjected him to "hostility and abuse in apparent retaliation for plaintiff's efforts to secure proper medical attention, medical diagnosis, and/or treatment." Id. Plaintiff claims that defendant coerced him into signing the treatment contracts, submitted a false statement that plaintiff was satisfied with his treatment plan, and discontinued his medication to retaliate against him. Id.

Under the heading "Claim for Relief," plaintiff alleges that the above-described conduct subjected him to cruel and unusual punishment in violation of the Eighth Amendment. Id. at 10-11.

II. Motion to Strike

Plaintiff has filed two declarations of fellow inmates in support of his opposition to the motion for summary judgment. Dckt. No. 54 at 19-22. Each declarant attests to various ways in which defendant, in the opinion of the declarants, failed to provide them with adequate medical care. Neither declaration contains any information about the facts at issue in this case. Defendant moves to strike the declarations as lacking foundation, irrelevant, hearsay, and attempting to offer inadmissible propensity evidence concerning the medical examination of other inmates by defendant. Dckt. No. 60. To the extent the declarations attempt to offer medical opinions, the declarants are clearly not qualified to do so. Where the declarations provide lay testimony, that evidence is only marginally relevant under the broad relevancy standard of Federal Rule of Evidence 401 (if defendant has provided inadequate care to others it is more likely that he provided inadequate care to plaintiff), and it is made inadmissible by Rule 404(b), which prohibits the use of evidence of an act to prove a person's character to show that on a ...


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