United States District Court, N.D. California
ORDER (1) DENYING DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S SUR-REPLY; (2) DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AND RENEWED MOTION FOR APPOINTMENT OF COUNSEL; (3) GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THE DELIBERATE INDIFFERENCE CLAIMS; AND (4) REFERRING REMAINING EXCESSIVE FORCE CLAIM TO PRO SE PRISONER SETTLEMENT PROGRAM
(Dkts. 44, 45, 61, 65)
YVONNE GONZALEZ ROGERS, District Judge.
Plaintiff, a former prisoner at Salinas Valley State Prison ("SVSP"), filed this pro se civil rights action under 42 U.S.C. § 1983 alleging the use of excessive force against him by a correctional officer at SVSP and the denial of adequate medical care for the resulting injuries by several SVSP nurses and doctors. On September 3, 2014, Plaintiff was released from the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Dkts. 65, 66. Plaintiff seeks monetary damages from Defendants.
Before the Court are Defendants' motion for summary judgment (Dkt. 45), Defendants' motion to strike Plaintiff's sur-reply (Dkt. 61), and Plaintiff's motion for reconsideration and renewed motion for appointment of counsel (Dkts. 44, 65). Having read and considered the papers submitted by the parties, Defendants' motion for summary judgment is GRANTED, Defendants' motion to strike Plaintiff's sur-reply is DENIED, and Plaintiff's motion for reconsideration and renewed motion for appointment of counsel are DENIED.
On July 18, 2012, Plaintiff filed the instant action against SVSP Warden A. Hedgpeth, Correctional Officer ("C/O") R. Morring, Registered Nurses Gee, Walker, Will, and LaDuke, and Drs. Bowman, Bridgnell,  and Gamboa, alleging that they had all violated his Eighth Amendment rights (Dkt. 1).
On January 10, 2013, the Court found Plaintiff's claims against Defendants Morring, Bowman, Gamboa, Bridgnell, Walker, and LaDuke cognizable as violations of the Eighth Amendment, and issued its Order of Service (Dkt. 5). The Court also dismissed all claims against Warden Hedgpeth on the basis that Plaintiff failed to provide any specific allegations against him in his complaint.
On June 14, 2013, the Court denied Plaintiff's motion for appointment of counsel to represent him in this action (Dkt. 32).
On August 12, 2013, the Court denied Plaintiff's motion for a continuance of proceedings and his second motion for appointment of counsel (Dkt. 42).
Thereafter, Plaintiff filed a motion for reconsideration of the Court's Order denying his second request for appointment of counsel as well as a renewed motion to appoint counsel (Dkts. 44, 65). At this time, Plaintiff's request for reconsideration and third request for the appointment of counsel are DENIED without prejudice (Dkts. 44, 65). This does not mean, however, that the Court will not sua sponte consider appointment of counsel at a later juncture in the proceedings; i.e., after this case has been referred to a magistrate judge for a settlement conference, as explained below. If this matter does not settle and if the Court decides that appointment of counsel is warranted at that time, it will sua sponte seek volunteer counsel to agree to represent Plaintiff pro bono. 
On October 22, 2013, Defendants Bowman, Gamboa, Bridgnell, Walker and LaDuke ("Defendants") filed the instant motion for summary judgment on the grounds that they did not act with deliberate indifference to Plaintiff's serious medical needs, and that they are entitled to qualified immunity (Dkt. 45). Meanwhile, Defendant Morring did not join in this motion, and informed the Court that Plaintiff's excessive force claim against him is not appropriate for resolution by summary judgment. (Dkt. 45 at 1 note 1.)
On February 14, 2013, Plaintiff filed an opposition to Defendants' motion for summary judgment (Dkt. 58). On February 28, 2014, Defendants filed their reply (Dkt. 59). On March 27, 2014, Plaintiff filed an additional reply (Dkt. 60), which is construed as his sur-reply.
On March 28, 2014, Defendants filed a motion to strike Plaintiff's sur-reply (Dkt. 61) on the ground that Plaintiff did not seek permission to file a sur-reply, as required by the Northern District of California's Local Rules. Specifically, Civil Local Rule 7-3 provides, in pertinent part, that "once a reply is filed, no additional memoranda, papers or letters may be filed without prior court approval." Civ. L. R. 7-3(d). Although Plaintiff's sur-reply is unauthorized, the Court notes Plaintiff is proceeding pro se. Defendants have been provided sufficient notice and an opportunity to respond; therefore, no prejudice is apparent. Good cause appearing, Defendants' motion to strike is DENIED (Dkt. 61), and Plaintiff's sur-reply will be considered as part of his opposition. The Court will now resolve the pending motion for summary judgment below.
I. Factual Background
The following facts are undisputed unless otherwise indicated.
On December 5, 2009, Plaintiff, who was housed at SVSP, was involved in an altercation with another prisoner, inmate Knox. (Compl. at 3.) Defendant Morring ("C/O Morring") was among the officers that responded to the altercation. ( Id. ) Plaintiff states that he was on the ground and had ceased fighting with inmate Knox when C/O Morring dispensed his pepper spray on Plaintiff, spraying Plaintiff's face. ( Id. ) Plaintiff states the he told C/O Morring, "I give-up, " and requested medical attention because the pepper spray made it difficult for Plaintiff to breathe. ( Id. ) Plaintiff states that C/O Morring "became angry and yelled, ... that's what you get. Fuck You, you don't [d]eserve shit. [Y]ou just lay there and shut up!'" ( Id. at 3, 5.) Plaintiff states that C/O Morring then told him to roll over, and Plaintiff complied. ( Id. at 5.) C/O Morring then "bent [the] thumb on [Plaintiff's] left hand back until the thumb broke." ( Id. ) Plaintiff maintains that he did not resist C/O Morring throughout the incident. ( Id. )
Defendants do not dispute the aforementioned facts in the instant motion for summary judgment. As mentioned above, Defendant Morring states that the excessive force claim against him is not appropriate for resolution by summary judgment. (Dkt. 45 at 1 note 1.)
Plaintiff asserts that after the alleged excessive force incident on December 5, 2009, Licensed Vocational Nurse Rodriguez filled out a CDCR Form 7254 (request for chronic care follow-up) informing staff in the Administrative Segregation ("Ad-Seg") Unit that Plaintiff had sustained an injury. (Compl. at 7.) Plaintiff asserts that Defendant LaDuke ("Nurse LaDuke"), received the CDCR Form 7254 when Plaintiff arrived in Ad-Seg, recognized that Plaintiff had an injury, and filled out a CDCR Form 7362 (request for medical treatment). ( Id. ) However, Plaintiff alleges that the request (CDCR Form 7362) was never submitted to the medical department, causing Plaintiff's thumb to remain untreated for a week, while he remained in Ad-Seg. ( Id. ) Plaintiff reports that during that week, he made repeated requests for treatment to Nurse LaDuke and Defendant Walker ("Nurse Walker"), but his requests were ignored. ( Id. ) Plaintiff states that at the disciplinary hearing held at the end of that week, Chief Hearing Officer Hendricks learned of Plaintiff's injury and informed SVSP medical staff that Plaintiff needed to be seen immediately. ( Id. )
On December 10, 2009, Nurse Walker examined Plaintiff. (Walker Decl. ¶ 3.) Nurse Walker contacted Defendant Bowman ("Dr. Bowman") about Plaintiff's injury, and Dr. Bowman ordered an x-ray of Plaintiff's hand. ( Id. ) The x-ray was taken on-site at SVSP that same day; however, the results were sent to an off-site radiologist for review. (Dkt. 47, Gamboa Declaration ("Gamboa Decl.") ¶ 4, Ex. A at 5.) Plaintiff was never examined by Dr. Bowman, who only placed the order for the x-ray. (Dkt. 48, Bowman Declaration ("Bowman Decl.") ¶ 3.) Dr. Bowman states that there is no indication that he saw or could have seen the radiologist's report about the x-ray on December 10, 2009. ( Id. ) Dr. Bowman adds: "Because there was nothing significant, urgent or life-threatening about [Plaintiff's] five-day injury, it would have been appropriate to send him back to his cell without being examined by a doctor." ( Id. ) Dr. Bowman states that had the radiologist found "something that was urgent" upon reviewing the x-ray, a doctor would have been notified. ( Id. ) Plaintiff confirms that he was never examined by Dr. Bowman nor did he witness Dr. Bowman review the x-rays. (Dkt. 54, Nygaard Declaration ("Nygaard Decl."), Ex. A at 4:13-6:25.)
On December 11, 2009, Defendant Gamboa ("Dr. Gamboa") examined Plaintiff following the x-ray, and recorded on a CDCR Form 7230-M (interdisciplinary progress notes) that Plaintiff's left hand was "sprained." (Compl. at 7.) Plaintiff states that Dr. Gamboa sent him back to his cell without sufficiently treating Plaintiff's injury and thus causing him pain. ( Id. at 8.) Nurse Walker was present during this examination. (Dkt. 49, Walker Declaration ("Walker Decl.") ¶ 4.) Dr. Gamboa confirms that he diagnosed Plaintiff's injury as a sprain based on a "visual examination of [Plaintiff's] hand." (Gamboa Decl. ¶ 5.) Dr. Gamboa claims that he did not review the x-ray or the radiologist's report because it had not yet been prepared. ( Id. ) Dr. Gamboa then prescribed ibuprofen, "a non-steroidal anti-inflammatory drug (NSAID) to reduce the inflammation and relieve [Plaintiff's] pain." ( Id. ) Dr. Gamboa states that "[i]t is generally known in the medical community that NSAIDs should be the first line of treatment for a sprain." ( Id. ) In addition, Dr. Gamboa noted that Plaintiff was already taking Tramadol, an opioid pain medication, to manage his pain. ( Id. )
Plaintiff asserts that after his December 11, 2009 appointment, he continued to inform Nurses Walker, Will, Gee, and LaDuke that his hand was swollen and causing him considerable pain, but Nurses Walker, Will, Gee, and LaDuke ignored Plaintiff's requests for assistance "until about the 22nd of December, when [he] was finally allowed to see an M.D. again." (Compl. at 8.)
On December 22, 2009, Dr. Gamboa examined Plaintiff again and, during this visit, discovered that Plaintiff's thumb was fractured, not sprained (his previous diagnosis). ( Id. ) Plaintiff states that Dr. Gamboa "noticed immediately that the hand was badly swollen" and ordered a copy of the x-ray. ( Id. ) Dr. Gamboa states that by the December 22, 2009 appointment, he had received the radiologist's report showing that Plaintiff had a "subtle minimally displaced corner fracture base proximal phalanx of the thumb." (Gamboa Decl. ¶ 6, Ex. A at 5, 6.) Dr. Gamboa then claims that because at that time he "knew that [Plaintiff] had sustained a fracture, " he ordered the prison's ...