Jackson v. Dye

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF Nos. 27 & 39]

         Plaintiff Curtis Renee Jackson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on March 3, 2014. Defendants have not consented to United States magistrate judge jurisdiction; therefore, this matter was referred to the undersigned pursuant to 28 U.S.C. § 636(1)(B) and Local Rule 302.

         I. RELEVANT HISTORY

         This action is proceeding against Defendants Dye and Mills for deliberate indifference to a serious medical need by failing to treat Plaintiff's urinary tract infection for three days.

         Defendants filed an answer to the second amended complaint on February 12, 2015. (ECF No. 20.) On February 13, 2015, the Court issued the discovery and scheduling order. (ECF No. 21.)

         After receiving an extension of time, Defendants filed a motion for summary judgment on January 25, 2016. After receiving two extensions of time, Plaintiff filed an opposition on April 27, 2016, and Defendants filed a reply on May 4, 2016.

         On May 23, 2016, Plaintiff filed "objections" to Defendants' reply, i.e. sur-reply.

         On May 27, 2016, Defendants filed a motion to strike Plaintiff's authorized sur-reply.

         II. 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 (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 (1986)).

         However, 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). The Court determines only whether there is a genuine issue for trial and in doing so, it must liberally construe Plaintiff's filings because he is a pro se prisoner. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (quotation marks and citations omitted).

         III. DISCUSSION

         A. Motion to Strike Surreply

         On May 27, 2016, Defendants filed a motion to strike Plaintiff's filing of an unauthorized sur-reply. (ECF No. 39.)

         Parties do not have the right to file surreplies and motions are deemed submitted when the time to reply has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor. Hill v. England, No. CVF05869 REC TAG, 2005 WL 3031136, at *1 (E.D. Cal. 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1197 (N.D.Ga. 2005)). However, district courts have the discretion to either permit or preclude a surreply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit "inequitable surreply"); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 2008) (district court did not abuse discretion in denying leave to file surreply where it did not consider new evidence in reply); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (new evidence in reply may not be considered without giving the non-movant an opportunity to respond).

         Although Plaintiff does not have a right to file a surreply, in this instance the Court will exercise its discretion and consider the sur-reply in ruling on Defendants' motion for summary judgment. Accordingly, Defendants' motion to strike the filing of the surreply should be denied.

         B. Defendants' Objections to Plaintiff's Declaration and Exhibits

         On May 4, 2016, Defendants filed objections to Plaintiff's declaration and attached exhibits submitted in opposition to their motion for summary judgment and move to strike such evidence.

         It is not practice of this Court to rule on each evidentiary objection, individually, and the Court will rule on the objections in the analysis portion of the instant findings and recommendations as pertinent to the arguments.

         C. Allegations Set Forth in Second Amended Complaint

         On May 18, 2013, at approximately 9:00 a.m. Plaintiff sought medical treatment at the Facility C Clinic due to extreme stomach pain. Plaintiff immediately approached LVN L. Mills and explained in detail the medical conditions he was experiencing. Mills insisted Plaintiff fill out and complete the health care service request form-CDC 7362. Mills conferred with RN, Dye who informed Mills that Plaintiff must complete the required health care service request form. Mills informed Plaintiff, he would be called in a couple days.

         On May 18, 2013, at approximately 10:00 a.m., Plaintiff returned to the Facility C Clinic and observed RN Dye standing in the door way of the clinic. Plaintiff informed Dye that he was now urinating blood and he was in pain. Dye instructed Plaintiff to complete and submit the health care service request form.

         During each day, Plaintiff urinated approximately three to four times a day and was in excruciating pain.

         On May 21, 2013, at approximately 8:00 a.m. Plaintiff was finally seen by RN Arola at the Facility C Clinic. Arola performed a urinalysis test that revealed a urinary tract infection. Plaintiff was taken to the prison's main hospital for further testing and treatment. Upon his arrival, Plaintiff was given various different types of medication.

         D. Statement of Undisputed Facts

         1. At all times relevant to this suit, Plaintiff Curtis Renee Jackson (J-88116) was an inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR), incarcerated at Pleasant Valley State Prison (PVSP). (Decl. of V. Whitney (Whitney Decl.), Ex. I [Jackson Dep.] at 12:14-16.)

         2. Jackson is not a medical doctor and has had no medical training. (Jackson Dep. 7:24-8:4.)

         3. On May 18, 2013, Inmate Jackson submitted a Health Care Services Request (CDCR 7362)-which inadvertently has the 17th listed as the date of submission. (Jackson Dep. at 25:12-19, 28:8-12, and Ex. 4; Decl. of B. Barnett, M.D. (Barnett Decl.) ¶ 5, Ex. B.)

         4. Jackson identified the reason he was requesting health care services in the 7362 as "can't retain urine" and also another word that looks like "vomiting" or "voiding." (Barnett Decl. ¶ 5.)

         5. Jackson confirms that his CDCR 7362 identified his complaint as "can't retain urine and vomiting." (Jackson Dep. at 25:20-26:5 and Ex. ¶ 4.)

         6. Jackson's 7362 submitted on May 18, 2013, does not indicate he was having excruciating pain.^[1] (Jackson Dep. at 26:7-14 and Ex. 4; Barnett Decl. ¶ 21, Ex. B.)

         7. Jackson's 7362 submitted on May 18, 2013, does not indicate he had blood in his urine. (Jackson Dep. Ex. 4.)

         8. While Jackson claims to have submitted a second 7362 at 10:00 a.m. on May 18, 2013, he does not have such a form, has not seen such a form, has no idea what happened to it, and there is no record of a second CDCR 7362 in Jackson's medical records. (Jackson Dep. at 26:18-27:6; Barnett Decl. ¶ 9.)

         9. The only CDCR 7362 in Jackson's Unit Health Record is the one submitted by Jackson at 9:00 a.m. on May 18, 2013. (Jackson Dep. at 28:23-29:7 and Ex. 4; Barnett Decl. ¶¶ 5, 9.)

         10. Mr. Jackson's CDCR 7362 submitted at or about 9:00 a.m. on May 18, 2013, was triaged by Registered Nurse (RN) Rojas at noon on Sunday, May 19, 2013. (Barnett Decl. ¶ 10; Jackson Dep. at 28:8-29:17.)

         11. Inmates are instructed to make their request for medical attention known by writing on a form 7362. Pursuant to current protocols, each form 7362 should be reviewed by an RN within one day following the inmate's submission of the form. (Barnett Decl. ¶ 10, n. 2.)

         12. The review of the CDCR 7362 by RN Rojas on May 19, 2013, was done within the timeframe required by the rules established in Plata v. Schwarzenegger. (Barnett Decl. ¶ 10.)

         13. After RN Rojas' triage of Jackson's 7362 on May 19, 2013, Jackson was seen by RN Arola at about 8:00 a.m. on May 21, 2013. (Jackson Dep. at 31:8-12, 37:9-13 and Ex. 2; Barnett Decl. ¶ 12.)

         14. RN Arola noted Jackson's chief complaint on May 21, 2013, as pain, nausea, and can't empty bladder. (Jackson Dep. at 37:16-19 and Ex. 2; Barnett Decl. ¶ 2.)

         15. RN Arola conducted a urine dipstick test which was positive for signs and symptoms consistent with a urinary tract infection (UTI), and she sent Jackson to the Triage and Treatment Area (TTA) at 8:40 a.m. (Barnett Decl. ¶ 12, Ex. E; Jackson Dep. at 38:7-21 and Ex. 2.)

         16. Mr. Jackson was seen at the TTA at 11:40 a.m. on May 21, 2013. (Barnett Decl. ¶ 13, Ex. F.)

         17. The TTA Services Flow Sheet in Mr. Jackson's medical records indicates he was seen by RN Keirn, and by Physician Assistant ...