United States District Court, C.D. California
Mark Bond, Plaintiff, Pro se, Mendota, CA.
For Mr Brown, (Pharmacist), Ms Valenzuela, Defendants: Donald W Yoo, United States Attorney's Office, Civil Division, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [DOCKET NOS. 100, 103]
Honorable Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. BACKGROUND AND SUMMARY
On January 11, 2013, Mark Bond (" plaintiff"), who is in custody, is proceeding pro se, and has been granted leave to proceed in forma pauperis, filed the operative unverified First Amended Complaint (" First Amended Complaint" or " FAC") pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (" Bivens"), 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which remains pending against Matthew Brown (" Brown") and Tiana Valenzuela-Lechuga (" Lechuga") (collectively " defendants") -- two officials with the Victorville Federal Correctional Institution I (" FCI Victorville" or " FCI") where plaintiff was previously incarcerated.(FAC at 3; Docket No. 70). Plaintiff sues defendants in their individual capacities only, and seeks monetary and injunctive relief. (FAC at 3, 6).
On June 3, 2014, plaintiff filed a Request for Summary Judgment (" Plaintiff's Motion") with attached exhibits (" PMSJ Ex.").
On June 18, 2014, defendants filed a consolidated Opposition to Plaintiff's Motion and Cross-Motion for Summary Judgment (" Defendants' Motion"). On the same date, this Court issued a notice explaining to plaintiff the requirements for opposing a motion for summary judgment in accordance with Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035, 119 S.Ct. 2392, 144 L.Ed.2d 793 (1999).
On July 7, 2014, plaintiff filed a consolidated Reply in support of Plaintiff's Motion and Opposition to Defendants' Motion (" Plaintiff's Reply") with exhibits (" P. Reply Ex.").
On August 15, 2014, defendants filed a Reply in support of Defendants' Motion (" Defendants' Reply").
Based upon the record and the applicable law, and as further discussed below, Plaintiff's Motion should be denied and Defendants' Motion should be granted.
FCI Victorville is a medium security federal correctional institution located within the Federal Correctional Complex (" Federal Correctional Complex" or " FCC") in Victorville, California. (Byrd Decl. ¶ ¶ 1, 4). Plaintiff was an inmate at FCI Victorville from August 28, 2008 to March 31, 2014. (D. SUF ¶ 2; Guth Decl. ¶ 5; Guth Ex. B at 15). In October 2010, plaintiff was segregated in the FCI Victorville Special Housing Unit (" SHU") for slightly over five weeks. (D. SUF ¶ ¶ 3, 8-9; Guth Decl. ¶ ¶ 5, 7; Guth Exs. B at 15; Byrd Decl. ¶ 4). Plaintiff arrived in the SHU on October 11, 2010, and was placed in a " dry cell" after FCI officials suspected plaintiff of ingesting narcotics during visiting hours. (D. SUF ¶ 3; Guth Decl. ¶ ¶ 5A, 7; Guth Exs. B at 15, E at 33; Bond Depo. at 100-01). Plaintiff was moved to a standard SHU cell on October 13, 2010, and later returned to the general inmate population on November 17, 2010. (D. SUF ¶ ¶ 8-9; Guth Decl. ¶ 5B; Sibanda Decl. ¶ 4; Guth Ex. B at 15; Byrd Decl. ¶ 4).
In 2010, FCI Nurse Practitioner (" NP") Hilengiwe Sibanda was plaintiff's primary care provider and treated plaintiff primarily for hypertension. (Sibanda Decl. ¶ 3). Throughout October 2010, plaintiff took one 10-milligram tablet of prescription Lisinopril per day to control his high blood pressure. (D. SUF ¶ 10; Byrd Decl. ¶ 7C; Byrd Ex. A at 65-67; Bond Depo. at 91-92). During that time plaintiff also purchased non-prescription ibuprofen directly from the commissary, which he took to relieve headaches. (Bond Depo. at 92-95). On October 11, 2010, plaintiff took his daily dose of Lisinopril in the morning, but did not bring his supply of Lisinopril with him when he was transferred to the SHU that afternoon. (Bond Depo. at 91-92, 100-01).
Plaintiff's Eighth Amendment claims stem from allegations that the defendants deliberately ignored or denied multiple requests by plaintiff to have his missing blood pressure medication replaced and to be given ibuprofen in the SHU. Plaintiff asserts that for a two to three week period after he arrived in the SHU, he made repeated ( i.e., " daily, " " on many different occasions, " " on a daily basis") requests for medication which defendants ignored and/or denied. (FAC at 5; Plaintiff's Motion at 4; Plaintiff's Reply at 2, 12; P. Reply Ex. Q).
B. Defendant Brown
Defendant Brown was employed as a paramedic at FCI Victorville in 2010. (Brown Decl. ¶ 1). Defendant Brown's duties included conducting the SHU " pill line" ( i.e., the twice daily time when BOP Health Services personnel would distribute medication to inmates). (D. SUF ¶ ¶ 15-16; Brown Decl. ¶ 2). Defendant Brown was not a physician, and was not authorized to prescribe medication. (D. SUF ¶ 15; Brown Decl. ¶ 2). In advance of each pill line he was to conduct, defendant Brown would obtain the prescription medication for each inmate prepackaged from the FCC Pharmacy. (D. SUF ¶ 17; Brown Decl. ¶ 3). Defendant Brown could distribute only the medication he received directly from the FCC Pharmacy. (D. SUF ¶ 17; Brown Decl. ¶ 3). If an inmate had a request or complaint about his medication during pill line, defendant Brown's custom and practice was to notify the inmate's primary care provider, or to direct the inmate to submit a " cop-out" request ( i.e., an inmate's informal written request to staff) to Health Services. (D. SUF ¶ 18; Brown Decl. ¶ 4). In October 2010, defendant Brown worked in the SHU on October 10-11, 13, 17-20, 24-25, 27, 29, and 31. (D. SUF ¶ 20; Brown Decl. ¶ ¶ 1, 6; Guth Ex. G at 46-52).
During plaintiff's 2010 segregation in the SHU, defendant Brown was not aware that plaintiff had high blood pressure. (PMSJ Ex. B at 1-3 [Defendant Brown's Responses To Plaintiff's First Set of Interrogatories]). During that time plaintiff did not complain to defendant Brown about migraine headaches, nosebleeds, or any other medical symptom. (Brown Decl. ¶ 7). Defendant Brown knew there were " certain consequences of not taking high blood pressure medication, " but believed that such consequences " would vary greatly depending on a particular inmate's circumstances of each case." (PMSJ Ex. B at 1-3).
C. Defendant Lechuga
In 2010, defendant Lechuga was a Certified Medical Technician at FCI. (Lechuga Decl. ¶ ¶ 1, 8). Defendant Lechuga would also conduct pill line in the SHU. (D. SUF ¶ 15; Lechuga Decl. ¶ 2). In October 2010 specifically, defendant Lechuga worked in the SHU on ...