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Cisneros v. Dham

United States District Court, E.D. California

February 9, 2015

MICHAEL VINCENT CISNEROS, Plaintiff,
v.
DR. M. DHAM, et al., Defendants.

FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 45)

BARBARA A. McAULIFFE, Magistrate Judge.

I. Introduction

Plaintiff Michael Vincent Cisneros ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. ยง 1983. This action proceeds on Plaintiff's complaint, filed on August 5, 2011, against Defendant Neubarth for deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment.

On August 21, 2014, Defendant Neubarth filed a motion for summary judgment on the grounds that he did not violate Plaintiff's Eighth Amendment rights and that he is entitled to qualified immunity.[1] (ECF No. 45.) On September 22, 2014, Plaintiff filed his opposition. (ECF No. 49.) Following an extension of time, Defendant filed a reply on October 21, 2014, which included objections to Plaintiff's evidence. (ECF No. 54.) On October 29, 2014, Plaintiff filed a response to Defendant's objections.[2] (ECF No. 55.) The motion is deemed submitted. Local Rule 230(l).

II. Defendant's Motion for Summary Judgment

A. Legal Standard for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a) summary judgment is appropriate when 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. Summary judgment must 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. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The "party seeking summary judgment 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, 477 U.S. at 323 (internal quotations and citations omitted).

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 does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the 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 the dispute exists. Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11.

In arriving at these Findings and Recommendations, the Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.

B. Defendant's Evidentiary Objections

On October 21, 2014, Defendant filed objections to Exhibits 1, 2 and 3 submitted by Plaintiff in his opposition. (ECF No. 54-2.) Plaintiff filed his response to the objections on October 29, 2014. (ECF No. 54.)

Exhibit 1

Exhibit 1 is the sworn declaration of Plaintiff's mother, Diana Collier. Defendant objects to this declaration as vague, ambiguous, conclusory, not relevant, lacking foundation, and containing impermissible hearsay in violation of Federal Rules of Evidence 402, 602, 802. Defendant further objects that Diana Collier's declaration claiming that Neurontin use caused damage to Plaintiff's eyes is not admissible under Federal Rule of Evidence 702 because competent expert testimony is required in order to establish medical causation between a particular event and the damage claimed by the Plaintiff.

Plaintiff counters that he did not submit the declaration of Diana Collier as expert testimony. Rather, Plaintiff states that he submitted the declaration to demonstrate how he obtained the pharmacy-listed side effects of gabapentin and to demonstrate that he had to obtain the side effects himself because no doctor would check the side effects.

Despite Plaintiff's assertions, there is no indication in the declaration of Diana Collier that she provided Plaintiff with a copy of any pharmacy-listed side effects of gabapentin or that it was the only means to obtain the side effects. (Pl's Ex. 1, ECF No. 49, p. 31.) It appears instead that Ms. Collier is providing testimony regarding the purported side effects of Neurontin, the diagnosis of Plaintiff following an eye exam and Plaintiff's vision status prior to taking Neurontin. (Id.)

Although Ms. Collier declares that she is a nurse, she has not been qualified as a medical expert pursuant to Federal Rule of Evidence 702. As such, Ms. Collier's non-expert testimony is limited to statements "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Therefore, she may not offer medical testimony regarding Plaintiff's vision status, diagnosis or medication side effects. She also may not provide testimony regarding causation. "[G]enerally plaintiff must prove causation by expert medical testimony except where there is an obvious causal relationship-one where injuries are immediate and direct." Walker v. Contra Costa County, 2006 WL 3371438 at * 9 (N.D. Cal. 2006), quoting In re Baycol Products Litigation, 321 F.Supp.2d 1118, 1125 (D. Minn. 2004) (citation omitted) (internal quotation omitted).

Defendant's objections to Ms. Collier's declaration on the grounds that she is not a medical expert pursuant to Federal Rule of Evidence 702 are SUSTAINED.

Exhibit 2

Exhibit 2 appears to be internet printouts of the warnings, precautions and side effects of Gabapentin and Neurontin. Exhibit 2 also includes information from the Food and Drug Administration ("FDA"), a federal government agency. Defendant does not object to the FDA documents. Accordingly, the Court's ruling is limited to the internet printouts regarding the side effects of Neurontin and Gabapentin, Plaintiff's Exhibit 2, ECF No. 49, pp. 34-41.

Defendant objects that the internet documents lack foundation and authentication, and cannot be substituted for expert testimony that is required in order to establish medical causation between a particular event and the damage claimed by the Plaintiff. Plaintiff counters that his mother, a registered nurse, obtained the listed side effects of Gabapentin and sent them to him.

Defendant's objections that the documents printed from the internet comprising Exhibit 2 lack foundation and authentication are SUSTAINED. Plaintiff has failed to produce evidence that these documents are what Plaintiff claims them to be and he cannot lay a foundation for records composed by third parties because he lacks personal knowledge regarding their contents. Fed.R.Evid. 602, 902. Plaintiff does not submit the testimony of a witness with knowledge of the documents. Fed.R.Evid. 901. Further, Defendant's objection that Plaintiff cannot substitute these documents in place of expert testimony regarding medical causation is SUSTAINED. See Walker, 2006 WL 3371438 at *9; Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2001) (competent expert testimony is required to establish medical causation between a particular event and any injury); Scott v. MTA Keller, 2010 WL 3635728, *6 (E.D. Cal. Sept. 14, 2010); Cf. Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir. 1988).

Exhibit 3

Exhibit 3 is comprised of photos of Plaintiff's mother and father. Defendant objects that these documents are not relevant and they cannot be substituted for competent expert testimony to establish medical causation. Plaintiff responds that the pictures of his parents are meant to show that Plaintiff does not "suffer from a genetic eye disorder." (ECF No. 55, p. 1.)

The photos of Plaintiff's mother and father are not relevant to the claim of deliberate indifference to serious medical needs. Fed.R.Evid. 401. Further, the photos cannot be used to demonstrate that Plaintiff does not have a genetic eye disorder. Plaintiff is not a qualified medical expert able to testify regarding the presence or absence of genetic eye disorders. Fed.R.Evid. 702. Defendant's objections to Exhibit 3 are SUSTAINED.

C. Plaintiff's Evidentiary Objections

Plaintiff objects to Defendant's Exhibit C, which is Mosby's Medical Drug Reference regarding gabapentin. (Ex. C to Neubarth Dec.) Plaintiff contends that the edition of Mosby's Medical Drug Reference submitted by Defendant Neubarth is not the edition used while working at CDCR. Plaintiff objects that the cited evidence lacks foundation and is not the relevant edition.

Defendant admits that Exhibit C is a copy of pages from another edition of Mosby's Medical Drug Reference. (ECF No. 49, Pl's Ex. 10, p. 99.) There is no indication that the edition relied upon by Defendant Neubarth was substantially the same as the exhibit supplied. Accordingly, Plaintiff's objections to Exhibit C are SUSTAINED.

D. Summary of Relevant Allegations in Plaintiff's Complaint

Plaintiff arrived at California State Prison, Corcoran ("Corcoran") on August 26, 2009. During intake, he did not have any documented visual problems, but he had back problems.

On October 14, 2009, Dr. McCabe prescribed Gabapentin for Plaintiff's back pain. Plaintiff immediately started to experience blurred vision. On October 30, 2009, he submitted a Medical Request Form complaining of vision problems.

On November 3, 2009, Nurse Barrera provided Plaintiff with eye drops for chronic dry eyes.

On November 19, 2009, Plaintiff submitted another Medical Request form ...


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