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Spencer E. Berry v. Dorothy Swingle

May 7, 2013


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. The parties consented to the jurisdiction of the undersigned.

Pending before the court is plaintiff's motion for partial summary judgment and defendants' cross-motion for summary judgment. After carefully reviewing the record, the undersigned orders that plaintiff's motion is denied and defendants' motion is granted.

II. Legal Standard for Summary Judgment

Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil procedure 56 is met. "The court shall grant summary judgment if the movant shows that 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).*fn1

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 then-numbered Fed. R. Civ. P. 56(c).) "Where the nonmoving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 Advisory Committee Notes to 2010 Amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact"). Indeed, 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. Celotex Corp., 477 U.S. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Consequently, if the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of such a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material in support of its contention that such a dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson 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), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, 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, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).

In resolving a summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 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. See Matsushita, 475 U.S. at 587. Nevertheless, 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. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, 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 586 (citation omitted).

III. Plaintiff's Claims

This action is proceeding on the amended complaint filed June 28, 2012 (dkt. no. 28) as to defendants Roach, Swingle, Martin, Reynolds, Zamora, Davis and Daniels. Defendant Roach has since changed her last name to Silkey.

Plaintiff alleges that in 1994, while housed in the California Youth Authority ("CYA"), he tested positive for tuberculosis. As a result, plaintiff was given INH medication for one year and annual chest x-rays were ordered. CYA medical staff advised plaintiff that he would test positive for tuberculosis for the rest of his life.

Plaintiff alleges that when he began his first prison term in 2000, he told medical staff at the Deuel Vocational Institution ("DVI") that he had undergone treatment for tuberculosis while housed in the CYA and that he would test positive for this disease. Plaintiff alleges that he was then classified as "Code 32," meaning he did not have to take tuberculosis tests.

Plaintiff alleges that he began serving his second prison term in 2009. At that time, he was again designated as "Code 32" by staff at DVI. In August 2010, plaintiff transferred to High Desert State Prison ("HDSP"). Plaintiff alleges that following his transfer to HDSP, he was told that there were no records to support the "Code 32" designation. Plaintiff alleges that he was then forced to take tuberculosis tests in violation of the Eighth Amendment. Plaintiff also alleges that defendants committed medical malpractice.

Plaintiff seeks monetary damages and injunctive relief.

IV. Undisputed Facts

Parties At all relevant times, plaintiff was an inmate in the custody of the California

Department of Corrections and Rehabilitation ("CDCR"). (Dkt. No. 28 at ¶ 3.) At all relevant times, defendant Swingle was the Chief Medical Officer for HDSP. (Dkt. No. 56-1 at 2.) At all relevant times, defendant Roach was a public health nurse at HDSP. (Id. at 10.) At all relevant times, defendant Martin was a supervising registered nurse at HDSP. (Id. at 16.) At all relevant times, defendant Daniels was a registered nurse at HDSP. (Id. at 20.) At all relevant times, defendant Reynolds was a licensed vocational nurse at HDSP. (Dkt. No. 28 at 7.) At all relevant times, defendant Davis was a registered nurse at HDSP. (Dkt. No. 56-1 at 24.)

At all relevant times, defendant Zamora was employed by CDCR as the Chief of Inmate Correspondence and Appeals Branch. (Dkt. No. 56-2 at 2.) Defendant Zamora played no role in plaintiff's medical care at HDSP. (Id. at 3.)

Background Facts on Tuberculosis

In 1984, tuberculosis cases hit an all-time low, and the federal and state governments stopped supporting the medical infrastructure that once served to contain the disease. See Guido Weber, Unresolved Issues in Controlling the Tuberculosis Epidemic Among the Foreign Born in the United States, 22 Am. J.L. and Med. 503 (1996). Thereafter, tuberculosis cases steadily increased for over a decade. In 1993, Congress allocated over $100 million to the Department of Health and Human Services to develop tuberculosis prevention and treatment programs. (Id.)

Tuberculosis is a disease caused by mycobacterium tuberculosis bacteria, which is spread from person-to-person through the air. (Dkt. 56-1 at 3, ¶ 4.) Tuberculosis can be fatal if not treated properly. (Id.)

There are two types of tuberculosis related conditions: latent and active tuberculosis. (Id. at ¶ 3.)

Latent tuberculosis means a person has tuberculosis causing bacteria in his or her body, but the disease is dormant. (Id.) People with latent tuberculosis do not know they have been infected, and they will not have any symptoms until the disease becomes active. (Id.)

Approximately ten percent of the general population will develop active tuberculosis after being infected when body defenses become weakened. (Id.) This situation may occur due to aging, human immunodeficiency virus ("HIV") infection, drug or alcohol abuse, or diabetes. (Id.)

On average, prisoners have a higher incidence of drug or alcohol abuse and HIV infection than the general population. (Id.) Accordingly, prisoners are more likely to develop active tuberculosis from a latent tuberculosis infection than most people. (Id.)

Active tuberculosis means the infection is spreading within the person's body. (Id. at ¶ 4.) When a person with active tuberculosis coughs or sneezes, mycobacterium tuberculosis are expelled into the air. (Id.) It is possible to contract active tuberculosis shortly after being exposed to mycobacterium tuberculosis. (Id.)

The early symptoms of tuberculosis are so mild that most patients do not know they have the disease, and include fatigue, weight loss, fever and swelling of the lymph nodes. (Id.) Accordingly, most people do not seek medical treatment immediately after they become contagious. (Id.)

CDCR's Tuberculosis Testing Policy

Communicable infections are particularly common in prisons and spread quickly because of the small confined spaces, high population density, and duration of exposure to other individuals. (Id. at ¶ 5.)

Prisoners are more likely to contract active tuberculosis than most people and are much more at risk from the disease than people who are not incarcerated. (Id.) Consequently, failing to locate all of the prisoners and correctional staff ...

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