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Atcherley v. Clark

United States District Court, E.D. California

March 20, 2015

WILBUR ATCHERLEY, Plaintiff,
v.
CLARK, et al., Defendants.

FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT ALADE'S MOTION FOR SUMMARY JUDGMENT (Document 165) THIRTY-DAY OBJECTION DEADLINE

DENNIS L. BECK, Magistrate Judge.

Plaintiff William Atcherley ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 28 U.S.C. ยง 1983. This action is proceeding on Plaintiff's Third Amended Complaint, filed on January 26, 2015, for violation of the Eighth Amendment and negligence against numerous Defendants.

On November 24, 2014, Defendant Alade filed the instant motion for summary judgment.[1] Plaintiff opposed the motion on December 24, 2014, and Defendant Alade filed his reply on January 7, 2014. Pursuant to Local Rule 230(l), the motion was deemed submitted when Defendant Alade filed his reply.

On January 7, 2015, Plaintiff filed an unauthorized surreply.[2]

I. LEGAL STANDARD

Any party may move for summary judgment, and 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) (quotation marks omitted); Washington Mutual Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party's position, whether it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of materials in the record, including but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the record not cited to by the parties, but it is not required to do so. Fed.R.Civ.P. 56(c)(3); Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

Defendant does not bear the burden of proof at trial and in moving for summary judgment, he need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986)). If Defendant meets his initial burden, the burden then shifts to Plaintiff "to designate specific facts demonstrating the existence of genuine issues for trial." In re Oracle Corp., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 323). This requires Plaintiff to "show more than the mere existence of a scintilla of evidence." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505 (1986)).

In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most favorable to the nonmoving party and determine whether a genuine issue of material fact precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted), cert. denied, 132 S.Ct. 1566 (2012). The Court determines only whether there is a genuine issue for trial, and Plaintiff's filings must be liberally construed because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

II. SUMMARY OF PLAINTIFF'S ALLEGATIONS[3]

Plaintiff is currently incarcerated at Kern Valley State Prison.

In 2010, Plaintiff was referred to an Orthopedic Specialist/Surgeon for treatment after an MRI of his left knee revealed a meniscal tear.

Defendant Alade examined Plaintiff on July 30, 2010, and recommended arthroscopic knee surgery.

On January 18, 2011, immediately prior to the surgery, Defendant Alade examined Plaintiff. Plaintiff informed him of a "previous infection." ECF No. 207, at 11. Defendant Alade "said that he would order some antibiotics for plaintiff to take after surgery." ECF No. 207, at 11.

On January 18, 2011, Defendant Alade performed arthroscopic surgery on Plaintiff's left knee. He ordered the use of a wheelchair and ordered that the dressing be kept clean and dry until the next appointment. However, Defendant Alade "forgot" to order the antibiotics despite his knowledge of Plaintiff's previous infection. ECF No. 207, at 11.

From the time when Plaintiff returned to the prison to February 11, 2011, Plaintiff alleges that numerous Defendants failed to provide proper care for his wound. Beginning on February 4, 2011, Plaintiff was treated with IV antibiotics and diagnosed with "Methiciliian-Sensitive ...


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