United States District Court, E.D. California
AMENDED PRETRIAL ORDER
23, 2016, at 8:30 a.m. in Courtroom 5 Plaintiff Eric Wheeler,
a state prisoner in this civil rights action, is represented
by attorneys Mordecai D. Boone and Daniel H. Solomon of
Dentons U.S. LLP. Defendant Byron Mui is represented by
attorney Thomas P. Feher of LeBeau-Thelen, LLP. Pursuant to
Federal Rule of Civil Procedure 16(e), the court now issues
its amended final pretrial order.
filed this civil rights action pursuant to 42 U.S.C. §
1983 on March 25, 2012. This action is proceeding against
defendant for deliberate indifference to a serious medical
need, in violation of the Eighth Amendment of the United
States Constitution. Plaintiff’s claim arises out of
medical treatment received in January 2011, at Mercy Hospital
in Bakersfield, California.
JURISDICTION AND VENUE
court has subject matter jurisdiction over this federal civil
rights action. 28 U.S.C. § 1331. Venue is proper because
the conduct allegedly occurred in this judicial district. 28
U.S.C. § 1391.
parties demand a trial by jury. Fed.R.Civ.P. 38(b). The trial
of this matter is scheduled to commence at 8:30 a.m. on
August 23, 2016 in Courtroom 5 before United States District
Judge Dale A. Drozd.
1. At all times relevant to this action, plaintiff was
incarcerated at the California Substance Abuse Treatment
2. Plaintiff sustained a mandibular fracture following a
physical altercation that took place at CSATF on January 19,
3. Physician Assistant M. Ross examined and interviewed
plaintiff on January 19, 2011, in the Triage and Treatment
Area of CSATF.
4. Plaintiff complained of facial trauma after an assault, as
well as severe pain in his jaw, the back of his head, and in
his left hip, knee and thigh. Plaintiff denied experiencing
any dizziness or loss of consciousness.
5. Ross did not observe any obvious signs of fracture to
plaintiff’s left leg.
6. Ross consulted with Dr. Lee, a dentist, who ordered
panorex x-rays of plaintiff’s jaw. The x-rays revealed
two fractures. Ross assessed plaintiff as having a fractured
mandible and arranged for his transport to Mercy Hospital.
7. On January 19, 2011, plaintiff was taken to the emergency
department at Mercy Hospital. Upon arrival, plaintiff
complained of pain in his jaw and left knee, thigh and hip.
8. Plaintiff was initially seen by Christopher Bradburn, M.D.
Dr. Bradburn ordered a CT scan of plaintiff’s head and
a maxillofacial CT scan. Dr. Bradbury also arranged for
defendant to be assigned as the admitting physician to secure
an ENT consultation.
9. The maxillofacial CT scan showed that plaintiff had
suffered several jaw fractures. The head CT scan showed no
10. While plaintiff was in the emergency room, he received
Dilaudid for pain management, as well as anti-nausea
medication and an antibiotic.
11. Plaintiff was transferred from the emergency department
and admitted to the hospital under defendant’s care.
12. X-rays of plaintiff’s left knee were pending at the
time of admission. The x-rays ultimately showed a
non-displaced fracture of the distal femur.
13. Defendant Dr. Mui took plaintiff’s history,
reviewed the CT scan results and secured an ENT consult with
14. On January 20, 2011, Dr. Suesberry performed a closed
reduction surgery to repair plaintiff’s fractured
15. On January 21, 2011, defendant Dr. Mui determined that
plaintiff was doing well after the surgery and that discharge
16. Plaintiff was discharged from Mercy Hospital on January
21, 2011, and was transported back to the medical facility at
17. Defendant did not render further care after
18. On April 3, 2012, plaintiff was medically declared
permanently mobility impaired in his left hip and leg.
1. Whether defendant Dr. Mui told plaintiff that he was not
treating his left knee, and that he was admitted only for the
2. Whether defendant refused to listen after plaintiff told
him that the emergency room doctor documented his knee pain,
and that x-rays were taken.
3. Whether defendant’s alleged conduct rises to
reckless indifference as it relates to plaintiff’s leg
injury during his stay at Mercy Hospital from January 19
through January 21, 2011.
4. Whether the course of treatment defendant chose was
medically acceptable under the circumstances.
5. Whether defendant’s alleged conduct was the legal
cause of any of the alleged damages suffered by plaintiff.
6. Whether defendant knew that his actions or omissions would
likely cause plaintiff to face a serious risk of injury, or
unnecessary and wanton pain.
7. Whether or not defendant’s actions or omissions
constituted negligence, rather than conscious disregard of a
serious and excessive risk that plaintiff would be injured or
suffer unnecessary pain.
8. Whether, if plaintiff was injured by defendant’s
actions or omissions, plaintiff suffered an actual injury of
sufficient magnitude to meet the requirements of the Prison
Litigation Reform Act.
Disputed Evidentiary Issues
objects to the introduction of evidence related to his
current prison sentence, prior convictions and disciplinary
record. Defendant reserves the right to offer evidence
regarding plaintiff’s prior felony sentences, including
the felony conviction for which he is currently incarcerated.
also objects to introduction of evidence related to the
payment of his medical expenses by the California Department
of Corrections and Rehabilitation, and whether any monetary
award would be paid by the State or through taxpayer funds.
further objects to the introduction of testimony relating to
medical malpractice, the standard of care and whether
defendant’s treatment of plaintiff conformed to that
standard, medical causation, and medical negligence.
Similarly, he objects to any testimony regarding
defendant’s state of mind, intent, motive, and
reasonable cause. Defendant has engaged the services of two
experts who intend to offer testimony regarding the
applicable standard of care, whether defendant’s
treatment met this standard, and whether any act or omission
by defendant caused any of plaintiff’s alleged
plaintiff requests that the DVD of a January 24, 2011,
interview of him related to the use of force against him be
admitted as evidence of his leg injury. Defendant objects to
the introduction of the DVD as irrelevant.
Special Factual Information
seeks compensatory damages in the amount of $500, 000,
general damages in the amount of $100, 000 and punitive
damages in the amount of $650, 000. He also seeks declaratory
Points of Law
Civil Rights Act under which this action was filed provides:
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
42 U.S.C. § 1983.
1983 provides a cause of action for the violation of
plaintiff’s constitutional by persons acting under
color of state law. Nurre v. Whitehead, 580 F.3d
1087, 1092 (9th Cir. 2009); Long v. County of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones
v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). To
prevail on his medical care claim, plaintiff must demonstrate
a link between actions or omissions of defendant and the
violation of his Eighth Amendment rights; there is no
respondeat superior liability under section 1983.
Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009);
Lemire v. California Dep’t of Corr. and
Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Moss
v. U.S. Secret Service, 711 F.3d 941, 967-68 (9th Cir.
2013); Lacey v. Maricopa County, 693 F.3d 896,
915-16 (9th Cir. 2012) (en banc); Simmons v. Navajo
County, Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010).
Eighth Amendment Claim- Medical Claim
the Eighth Amendment of the United States Constitution
entitles plaintiff to medical care, the Eighth Amendment is
violated only when a prison official acts with deliberate
indifference to an inmate’s serious medical needs.
Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012);
Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir.
2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006). Plaintiff must show (1) “a serious medical need
by demonstrating that failure to treat [his] condition could
result in further significant injury or the unnecessary and
wanton infliction of pain, ” and (2) that “the
defendant’s response to the need was deliberately
indifferent.” Wilhelm, 680 F.3d at 1122
(citing Jett, 439 F.3d at 1096).
existence of an injury that a reasonable doctor would find
important and worthy of comment or treatment, the presence of
a medical condition that significantly affects an
individual’s daily activities, and/or the existence of
chronic or substantial pain are indications of a serious
medical need, which is the objective element of an Eighth
Amendment claim. Lopez v. Smith, 203 F.3d 1122, 1131
(9th Cir. 2000) (citation omitted).
indifference, which is the subjective element of an Eighth
Amendment claim, is shown by “(a) a purposeful act or
failure to respond to a prisoner’s pain or possible
medical need, and (b) harm caused by the indifference.”
Wilhelm, 680 F.3d at 1122 (citing Jett, 439
F.3d at 1096). The requisite state of mind is one of
subjective recklessness, which entails more than ordinary
lack of due care. Snow, 681 F.3d at 985 (citation
and quotation marks omitted); Wilhelm, 680 F.3d at
1122. “Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner.” Estelle v. Gamble, 429 U.S. 97, 106
(1977); Snow, 681 F.3d at 987-88; Wilhelm,
680 F.3d at 1122.
“[a] difference of opinion between a physician and the
prisoner - or between medical professionals - concerning what
medical care is appropriate does not amount to deliberate
indifference.” Snow, 681 F.3d at 987 (citing
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989));
Wilhelm, 680 F.3d at 1122-23 (citing Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather,
plaintiff “must show that the course of treatment the
doctors chose was medically unacceptable under the
circumstances and that the defendants chose this course in
conscious disregard of an excessive risk to [his]
health.” Snow, 681 F.3d at 988 (citing
Jackson, 90 F.3d at 332) (internal quotation marks
omitted). However, treatment decisions based on budgetary
concerns do not shield prison officials from liability for
deliberate indifference. Jones v. Johnson, 781 F.2d
769, 771 (9th Cir. 1986).
Physical Injury Required for Mental and Emotional
Prison Litigation Reform Act provides that “[n]o
Federal civil action may be brought by a prisoner confined in
jail, prison, or other correctional facility, for mental and
emotional injury suffered while in custody without a prior
showing of physical injury or the commission of a sexual act
(as defined in section 2246 of Title 18).” 42 U.S.C.
§ 1997e(e). The physical injury “need not be
significant but must be more than de minimis.”
Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002).
Accord Pierce v. County of Orange, 526 F.3d 1190,
1123-24 (9th Cir. 2008). The physical injury requirement
applies only to claims for mental or emotional injuries and
does not bar claims for compensatory, nominal, or punitive
damages. Oliver, 289 F.3d at 630.
has the burden of proving what, if any, punitive damages
should be awarded by a preponderance of the evidence. Ninth
Circuit Model Civil Jury Instructions § 5.5 (2008). The
jury must find that defendant’s conduct was
“motivated by evil motive or intent, or . . . involves
reckless or callous indifference to the federally protected
rights of others.” Smith v. Wade, 461 U.S. 30,
56 (1986). Acts or omissions which are malicious, wanton, or
oppressive support an award of punitive damages. Dang v.
Cross, 422 F.3d 800, 807-08 (9th Cir. 2005).
Federal Rules of Evidence
Rules of Evidence 608 and 609 provide that evidence of a
witness’s prior felony conviction or instance of
conduct demonstrating a propensity to lie may be used to
impeach that witness’s testimony. Federal Rule of
Evidence 404(b) provides that evidence of prior crimes,
wrongs, or acts cannot be used to prove the character of the
person in order to show conduct in conformity with that
character trait. Such prior acts may be admissible for other
purposes only, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident. Id.