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Charles Phillips v. Fisherman

March 18, 2013

CHARLES PHILLIPS PLAINTIFF,
v.
FISHERMAN, ET AL. DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with an action under 42 U.S.C. § 1983. In his complaint plaintiff alleges that while he was housed at the California Medical Facility (CMF), all five defendants named in this lawsuit were deliberately indifferent to a serious medical need -- specifically, plaintiff's insomnia -- in violation of his rights under the Eighth Amendment and that he was transferred out of CMF in retaliation for his filing internal grievances about his inadequate medical treatment in violation of his rights under the First Amendment. Defendants have moved for summary judgment on both claims.

I. Summary Judgment Standards

The "purpose of summary judgment is 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. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments). Summary judgment is appropriate when the movant demonstrates that there exists "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)).

"[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Seeid. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita, 475 U.S. at 586. In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings. Instead, it must evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material -- that is, that it might affect the outcome of the suit under the governing law. SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The opposing party must also demonstrate that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, seeWool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). The evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. SeeMatsushita, 475 U.S. at 587. Still, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. SeeRichards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). See also Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000) ("A scintilla of evidence or evidence that is merely colorable . . . does not present a genuine issue of material fact" but rather there "must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion."); Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993) ("When the non-moving party relies on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact.").

II. Undisputed Facts

Defendants' statement of undisputed facts is supported by citations to copies of plaintiff's medical records and sworn declarations by CMF Litigation Coordinator Weaver, Dr. Nachtwey, defendant Dr. Bick, defendant Dr. Fisherman, defendant Dr. Gallo, and defendant Dr. James. The defendants' evidence on summary judgment establishes the following.

Each of the five defendants -- Bick, Fisherman, Gallo, James and Turner -- were employed as either a psychologist or psychiatrist at CMF during the events that comprise plaintiff's claims. (First Am. Complaint (Doc. 17) at 2-3, 6.)

The first medical record defendants submit is dated August 13, 2003. It contains plaintiff's claim to medical staff at CMF that "I haven't slept in over a year." (Mot. for Summ. J., Ex. A (Docket No. 53-5) at 2.) Plaintiff was examined that day by Dr. James (presumably the same Dr. James who is named as a defendant in this case), who noted that "[t]here is a [history] of behaviors all over the map, from behaving normally to psychotic-like with what appears to be marked delusional thinking (somatic delusions?). . . . It is difficult to determine fact from delusional/somatic fantasy." (Id.) Doctor James also noted that plaintiff "refuses" to take psychiatric medications. (Id.)

Plaintiff's extensive medical history at CMF shows that he would repeat his pattern of reporting severe insomnia for many years.*fn1 In this regard, back on June 15, 2004, plaintiff complained that he could not "get the medication I want for relief from this insomnia [and] the pain that I'm in 24 hours around the clock." (Id. at 4.) It was reported at that time that, however, that "[h]is presentation [was] inconsistent with what would be expected from someone who hasn't slept in weeks." (Id.) His "[s]peech [was] relevant [and] coherent as he trie[d] to make a case for getting Demerol." (Id.)

Despite the possibility of a psychosomatic condition, plaintiff was nonetheless treated by prison medical staff in various ways for a sleep disorder. He was prescribed Tamazepam for "chronic insomnia" in August 2006. (Id.) In November 2006, he was treated at an outpatient facility in San Pablo, California, as part of a sleep apnea study. (Id. at 9-10.) The study concluded that plaintiff's "treatment consideration" should be for "symptomatic mild obstructive sleep apnea." (Id.) Two months later, Dr. Frank Hseuh requested that plaintiff receive Rozeram for "chronic insomnia." (Id. at 14.) Defendant Dr. Bick denied that request, stating "CDCR policy is that pharmacologic treatment of insomnia is to be done by the mental health clinicians." (Id.)

On March 17, 2007, Plaintiff began taking Ambien, pursuant to a prescription by a psychiatrist, Dr. Adler. (Id. at 15-17.) Dr. Adler noted that "as others have observed [plaintiff] doesn't appear sleepy or tired." (Id. at 15). Dr. Adler's assessment was that plaintiff suffered from a "delusional disorder." Less than two months ...


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