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Sims v. Lopez

United States District Court, E.D. California

March 31, 2015

KELVIN SIMS, Plaintiff,
v.
SHERRY LOPEZ, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO STRIKE OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 74, 76) ORDER STRIKING PLAINTIFF'S OPPOSITION AND SUPPORTING EXHIBITS FILED ON AUGUST 15, 2014 (ECF Nos. 89, 90) ORDER DENYING PLAINTIFF'S MOTION TO DENY OR POSTPONE CONSIDERATION OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 91) ORDER DENYING PLAINTIFF'S REQUEST FOR APPOINTMENT OF MEDICAL EXPERT (ECF No. 91) ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF No. 62)

BARBARA A. McAULIFFE, Magistrate Judge.

I. Procedural Background

Plaintiff Kelvin Sims ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds against Defendant Lopez for retaliation in violation of the First Amendment, and against Defendants Akanno and Lopez for deliberate indifference in violation of the Eighth Amendment and medical malpractice under state law. (ECF No. 27.) The parties consented to the jurisdiction of the Magistrate Judge. (ECF Nos. 5, 46.)

On July 8, 2013, Defendants filed a motion for summary judgment on the grounds that the undisputed facts demonstrate that: (1) Defendants did not violate the standard of care in treating Plaintiff; (2) Plaintiff suffered no injury; (3) Defendants were not deliberately indifferent to Plaintiff's serious medical needs in violation of the Eighth Amendment; (4) Defendant Lopez is not liable for retaliation in violation of the First Amendment; and (5) Defendants are entitled to qualified immunity because a reasonable person in Defendants' positions could have believed that their conduct was lawful.[1] (ECF No. 62.) Plaintiff initially did not file a timely opposition. Instead, on August 28, 2013, Plaintiff requested appointment of counsel. (ECF No. 63.) The Court denied Plaintiff's request on August 29, 2013. (ECF No. 64.)

On December 18, 2013, Plaintiff filed an untimely motion for an enlargement of time to oppose Defendants' motion for summary judgment. Plaintiff also requested the appointment of counsel. (ECF No. 66.) The Court denied Plaintiff's request for the appointment of counsel, but granted Plaintiff's request for an extension of time to file his opposition to Defendants' motion for summary judgment, citing the public policy favoring disposition of cases on their merits. Plaintiff's deadline to file his opposition was February 14, 2014, more than seven months after Defendants filed the motion for summary judgment. (ECF No. 67.)

Despite the extension of time, Plaintiff did not file an opposition. Rather, on March 3, 2014, Plaintiff filed another untimely request for an enlargement of time to file his opposition to the motion for summary judgment. (ECF No. 68.) The Court granted the request and set the deadline for Plaintiff's opposition as April 7, 2014. (ECF No. 69.)

Again, Plaintiff did not file a timely opposition. Instead, on April 7, 2014, Plaintiff requested a third enlargement of time to file his opposition to the motion for summary judgment. (ECF No. 70.) The Court granted the request, but noted that because the motion for summary judgment had been pending since July 2013 further extensions of time could result in prejudice to Defendants. Accordingly, the Court cautioned Plaintiff that any further extensions of time must be supported by good cause. Plaintiff's deadline to file his opposition was May 8, 2014. (ECF No. 71.)

Yet again, Plaintiff did not file an opposition to Defendants' summary judgment motion. Plaintiff instead filed a motion seeking another thirty-day extension of time to file his opposition. (ECF No. 72.) During pendency of the motion, Plaintiff filed a purported opposition to the motion for summary judgment on June 2, 2014. (ECF No. 74.)

On June 6, 2014, Defendants filed a motion to strike Plaintiff's opposition to the motion for summary judgment. Defendants argued that the opposition was untimely, lacked foundation and failed to conform to the requirements of Federal Rule of Civil Procedure 56(c) and Local Rule 260(b). (ECF No. 76.)

On June 23, 2014, the Court granted Plaintiff's request for an extension of time to file his opposition nunc pro tunc given that Plaintiff had filed a purported opposition. (ECF No. 80.)

On July 2, 2014, Plaintiff filed a second opposition to the motion for summary judgment, along with a supplement to his opposition. (ECF Nos. 83, 84.)

On July 23, 2014, Plaintiff filed a request for leave to amend his opposition to the motion for summary judgment. Plaintiff also filed exhibits, which appeared to be in support of his request for extension of time and his opposition. (ECF Nos. 85, 86.)

On July 28, 2014, the Court denied Plaintiff's request for an extension of time to amend his opposition to the motion for summary judgment, noting that Plaintiff had continuously disregarded set deadlines and orders in this action. The Court informed Plaintiff that if he filed additional motions for an extension of time to oppose Defendants' summary judgment motion or additional papers purporting to be his opposition, then those documents would be stricken from the record and would not be considered by the Court. The Court also granted Defendants an opportunity to file an optional reply to Plaintiff's July 2, 2014 opposition (and the exhibits filed on July 23, 2014) within fourteen days. Additionally, the Court informed the parties that upon expiration of the fourteen-day deadline, the motion for summary judgment would be deemed submitted pursuant to Local Rule 230(l). (ECF No. 87.)

On August 15, 2014, Plaintiff filed a third purported opposition to the motion for summary judgment, along with exhibits. (ECF Nos. 89, 90.)

On August 29, 2014, Plaintiff filed a declaration, which includes argument supporting his opposition, a request to deny or postpone consideration of Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(d) in order to allow Plaintiff to obtain declarations from other prisoners, and a request for appointment of a medical expert. (ECF No. 91.)

II. Defendants' Motion to Strike Plaintiff's Opposition

On June 2, 2014, Plaintiff filed his initial opposition to Defendants' motion for summary judgment. (ECF No. 69.) The opposition is a declaration by an inmate at CSP-Solano, Michael Woody, and purports to be both a request for an extension of time and an opposition to the motion for summary judgment. (ECF No. 74.) Defendants opposed the motion for an extension of time as untimely, and moved to strike the opposition. (ECF Nos. 75, 76.) On June 23, 2014, the Court granted Plaintiff's request for an extension of time nunc pro tunc.[2] (ECF No. 80.) The Court now turns to the motion to strike.

Defendants move to strike Plaintiff's June 2, 2014 opposition, i.e., Inmate Woody's declaration, as untimely, lacking foundation and failing to conform to the requirements for opposing a motion for summary judgment under Rule 56(c) and Local Rule 260(b). For the reasons discussed below, Defendants' motion to strike Plaintiff's opposition filed on June 2, 2014, shall be granted.

According to his declaration, Inmate Woody lacks personal knowledge regarding the events at issue in this action. (ECF No. 74, ¶ 8.) "Declarations must be made with personal knowledge; declarations not based on personal knowledge are inadmissible and cannot raise a genuine issue of material fact." Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012) (citing Skillsky v. Lucky Store, Inc., 893 F.2d 1088, 1091 (9th Cir. 1990) and Fed.R.Civ.P. 56(c)(4)).

Inmate Woody's declaration also does not comport with the requirements for opposing a motion for summary judgment. Federal Rule of Civil Procedure 56(c) requires that declarations opposing a motion for summary judgment be made on personal knowledge. Fed.R.Civ.P. 56(c)(4). Further, Local Rule 260(b) requires any party opposing a motion for summary judgment to "reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission or other document relied upon in support of that denial." Inmate Woody's declaration does not include an itemized reproduction of Defendants' statement of undisputed nor does it identify those facts that are disputed or undisputed.

III. Plaintiff's Opposition and Exhibits filed on August 15, 2014

On July 28, 2014, the Court forewarned Plaintiff that if he filed additional motions for an extension of time to oppose Defendants' summary judgment motion or additional papers purporting to be his opposition, then those documents would be stricken from the record and would not be considered by the Court. (ECF No. 87.) In direct contravention of the Court's order, Plaintiff filed a third purported opposition to the motion for summary judgment, along with supporting exhibits, on August 15, 2014. (ECF Nos. 89, 90.)

In keeping with the Court's prior order, Plaintiff's third purported opposition and supporting exhibits filed on August 15, 2014, shall be stricken from the record. These documents [ECF Nos. 89, 90] will not be considered by the Court for any purpose.

IV. Plaintiff's Motion to Deny or Postpone Consideration of Defendants' Motion for Summary Judgment

On August 29, 2014, Plaintiff filed a declaration, which includes argument supporting his opposition, along with a request to deny or postpone consideration of Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(d). (ECF No. 19.) Consistent with the Court's prior orders, arguments in the declaration supporting Plaintiff's opposition shall be disregarded. The Court now turns to the request to postpone consideration of Defendants' motion for summary judgment.

Plaintiff requests that the Court postpone consideration of the motion for summary judgment so that he may contact possible percipient witnesses and correspond with a prior cellmate assisting him with this action. He asks the Court for an order directing Defendants to supply him with rosters of inmates who were at KVSP during the relevant time period and to allow him to contact these inmates to supply witness declarations. Plaintiff also requests that Defendants supply him with employee rosters.

A. Legal Standard

"If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed.R.Civ.P. 56(d). Plaintiff bears the burden of specifically identifying relevant information, where there is some basis for believing that the information actually exists, and demonstrating that the evidence sought actually exists and that it would prevent summary judgment. Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009) (quotation marks and citation omitted); Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100-01 (9th Cir. 2006). Additionally, Plaintiff must make some showing of diligence, that he sought the requested information during the discovery period, or that there is good reason he has not been able to obtain the information before now. See Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985).

B. Discussion

Plaintiff has not demonstrated diligence in seeking the requested discovery. On August 13, 2012, the Court issued a discovery and scheduling order, which set the deadline to complete discovery as April 13, 2013. (ECF No. 35.) Plaintiff did not seek to extend the discovery deadline for any purpose, including any third-party discovery. Following the Court's order of service in this action on March 29, 2012, there is no indication that Plaintiff made any attempts to secure this Court's assistance for purposes of communicating with inmate witnesses or off-site inmate legal assistants. More importantly, Plaintiff waited for more than one year before seeking postponement of the motion for summary judgment. He also waited until well after his opposition to the motion for summary judgment was due. Further, there is no indication that the inmates and employees will provide necessary information that would prevent summary judgment. Plaintiff himself admits that he does not recall the names of inmates or employees. (ECF No. 91, pp. 6-7.) Accordingly, Plaintiff's motion to postpone consideration of the motion for summary judgment shall be denied.

V. Plaintiff's Request for Appointment of Medical Expert

Plaintiff requests that the Court appoint an expert "to provide rebuttal testimony to statements entered into the record by Defendants' medical expert." (ECF No. 91, p. 1.) Plaintiff believes that Defendants will have an unfair advantage by being able to utilize the opinions of their medical expert.

The Court has the discretion to appoint an expert pursuant to Rule 706(a). In relevant part, Rule 706 states that "[o]n a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed...." Fed.R.Evid. 706(a); Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). Pursuant to Rule 702, "a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue...." Fed.R.Evid. 702. While the court has the discretion to appoint an expert and to apportion costs, including apportionment of costs to one side, Fed.R.Evid. 706; Ford ex rel. Ford v. Long Beach Unified School Dist., 291 F.3d 1086, 1090 (9th Cir.2002); Walker, 180 F.3d at 1071, where the cost would likely be apportioned to the government, the court should exercise caution.

Based on Plaintiff's representations that he requires expert testimony to rebut Defendants' testimony and add credibility to his claim, it appears that Plaintiff seeks the appointment of an expert witness to assist him in defeating summary judgment. However, Rule 706 does not contemplate court appointment and compensation of an expert witness as an advocate for Plaintiff. Manriquez v. Huchins, 2012 WL 5880431, *14 (E.D. Cal. 2012) (purpose of a court-appointed expert is to assist the trier of fact, not to serve as an advocate); Brooks v. Tate, 2013 WL 4049043, *1 (E.D. Cal. Aug. 7, 2013) (avoiding bias or otherwise assisting one party is not the purpose of Rule 706); Gorrell v. Sneath, 2013 WL 3357646, * 1 (E.D. Cal. Jul. 3, 2013) (purpose of court-appointed expert is to assist the trier of fact, not to serve as an advocate for a particular party). The Court does not require a neutral expert to aid its understanding of the deliberate indifference and malpractice claims at issue in this action. Accordingly, Plaintiff's motion for the appointment of a medical expert shall be denied.

II. Defendants' Motion for Summary Judgment

A. Legal Standard

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.

The parties bear the burden of supporting their motions and oppositions with the papers they wish the Court to consider and/or by specifically referencing any other portions of the record for consideration. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to scour the record for triable issues of fact. Simmons v. Navajo County, Arizona, 609 F.3d 1011, 1017 (9th Cir. 2010).

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. Summary of Relevant Allegations

Since approximately August 29, 2007, Plaintiff has suffered from increasingly severe, excruciating and crippling lower back pain, which has impaired his ability to walk, bend, squat, sit, stand or ambulate and has necessitated the use of a wheelchair for mobility. His lower back condition-various developing stages of spondylotic spinal stenosis with recurrent compression of L3 and L4 nerve roots-requires treatment with medications and therapies to alleviate chronic pain. Since approximately January 27, 2008, Plaintiff has suffered from severe, excruciating rectal pain and bleeding, which is aggravated by constipation and straining to defecate.

Plaintiff alleges that Defendants Dr. Akanno, a prison physician and surgeon, and Dr. Sherry Lopez, the Chief Medical Officer and/or Health Care Manager, who were both assigned to Kern Valley State Prison ("KVSP"), acted with deliberate indifference to Plaintiff's need for medical treatment. Plaintiff also alleges that Defendants delayed and failed to provide necessary medical care, including referrals to outside specialists, implementation of treatment recommendations, provision of necessary pain medications, equipment accommodations for his lower back, and corrective surgeries for his back and hemorrhoids.

According to Plaintiff's declaration accompanying his complaint, Plaintiff alleges that Dr. Akanno was his primary care physician during the relevant time period. On October 27, 2009, Plaintiff was escorted to CTC for a scheduled MRI of his back. Plaintiff was unable to have the MRI due to his claustrophobic condition. Dr. Akanno wrote a physician's referral for service for an open-air MRI to be arranged. When asked about Plaintiff's October 21, 2009 repeat colonoscopy, Dr. Akanno said that the G.I. specialist wanted a repeat colonoscopy. When questioned about the specialist's recommendations for a high fiber/low sodium diet, Dr. Akanno said he would have to see the colonoscopy results before addressing the special diet issue. Plaintiff also discussed his issues regarding pain medication and severe pain in the lower back and rectal areas.

On November 18, 2009, Plaintiff informed Dr. Akanno about his rectal pain. Dr. Akanno said he would provide Plaintiff with pain relief and advised Plaintiff that the G. I. specialist wanted him scheduled for a repeat colonoscopy six months from October 21, 2009. Plaintiff's October 21, 2009 colonoscopy revealed large internal hemorrhoids. Dr. Akanno advised that he would make a referral for a third colonoscopy, along with a referral for MRIs of the cervical and lumbar spine. With regard to the high fiber/low sodium diet, the KVSP dietician had indicated to Dr. Akanno that Plaintiff was receiving such a diet. Plaintiff said that he was not and remained chronically constipated, straining to defecate and suffering pain.

On December 11, 2009, while on the doctor line, Plaintiff asked Dr. Akanno about the results of his back MRI and the high fiber diet. Dr. Akanno responded that Plaintiff had arthritis, but he could not say more because he did not have access to Plaintiff's medical file. Dr. Akanno asked Plaintiff when he last saw the G. I. specialist about his hemorrhoids. Plaintiff reminded Dr. Akanno that he wrote a referral for a third colonoscopy. Dr. Akanno scheduled Plaintiff for doctor line in 8 weeks.

On January 13, 2010, Plaintiff saw Nurse Moonga and Dr. Akanno. Plaintiff showed Dr. Akanno the latest MRI report dated November 17, 2009, and asked him why none of the treatment recommendations had been followed or implemented. Dr. Akanno did not answer. He took the MRI reports and made photocopies of them. Plaintiff reported to Dr. Akanno that he was in severe pain from his lower back and hemorrhoid conditions. He explained that the Fentanyl patch dosage no longer provided effective pain relief and requested an increased dosage, along with a high fiber diet. Plaintiff also requested back surgery and a hemorrhoidectomy. Dr. Akanno said that he would discuss these matters with CMO Lopez.

On January 22, 2010, Plaintiff saw Dr. Akanno to discuss the cervical spine M.R.I. results. When Plaintiff asked why he had not been scheduled for surgery, Dr. Akanno said that he needed to let doctors and the CMO do their process regarding his back and other medical needs. Dr. Akanno also told him that the Federal Receiver's staff, the Prison Law Office and Sacramento said that he complained too much and suggested that Dr. Akanno just ignore him. Plaintiff advised Dr. Akanno that he was in pain and the patch had lost its effectiveness. Plaintiff also asked Dr. Akanno about his request for a high fiber diet and hemorrhoid pain relief. Dr. Akanno's response was that he was working on those things.

On February 19, 2010, Plaintiff saw Dr. Akanno and asked him why he had not received back surgery. Dr. Akanno said that back surgery was coming because KVSP's ADA coordinator wanted Plaintiff moved out of the cell as soon as possible. Dr. Akanno said it was taking time to arrange his back surgery because Sacramento had his medical files. When Plaintiff asked Dr. Akanno for pain management, he wrote a referral for Plaintiff to have surgery on his bunions. Dr. Akanno did not want to discuss more than one medical issue. Plaintiff asked what Dr. Akanno intended to do about his back and hemorrhoid conditions, but Dr. Akanno's only response was that he would see Plaintiff in 3 or 4 weeks to discuss the rest of his medical problems.

On February 22, 2010, Plaintiff saw Dr. Akanno's boss, Dr. Swingo, for consultation. Dr. Swingo said that he came to KVSP from Sacramento to talk with Plaintiff about a CDC 7362 request for medical services Plaintiff has submitted concerning his hemorrhoid problems. Dr. Swingo informed Plaintiff that his medical files were not available. Dr. Swingo prescribed fiber pills. Plaintiff showed Dr. Swingo a copy of his latest colonoscopy report. Plaintiff informed Dr. Swingo that he was in excruciating pain due to his hemorrhoids and back conditions. Dr. Swingo said that Plaintiff needed to try to walk and asked how long Plaintiff had been in a wheelchair. Plaintiff told him that he tried to walk, but could not, and had been in a wheelchair since 2007. Dr. Swingo assured Plaintiff that he would talk with Dr. Akanno about increasing his pain medications.

On March 12, 2010, Plaintiff saw Dr. Akanno and requested the status of his back surgery. Dr. Akanno responded that Plaintiff was up for surgery and after surgery was completed Associate Warden R. Keldgord wanted plaintiff moved out of the DPW cell. Dr. Akanno also said that hemorrhoid surgery had been scheduled. Dr. Akanno denied Plaintiff's request for a renewed hot shower chrono as treatment for lower back pain.

On March 15, 2010, Correctional Officer Peterson informed Plaintiff that Dr. Akanno had told him that Plaintiff was denied a shower chrono and that he was not sure that CMO Lopez was going to renew ...


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