Wheeler v. Mui

          AMENDED PRETRIAL ORDER

         August 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.

         I. SUMMARY

         Plaintiff 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.

         II. JURISDICTION AND VENUE

         The 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.

         III. TRIAL

         The 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.

         IV. FACTS

         A. Undisputed Facts^[1]

1. At all times relevant to this action, plaintiff was incarcerated at the California Substance Abuse Treatment Facility (“CSATF”).

2. Plaintiff sustained a mandibular fracture following a physical altercation that took place at CSATF on January 19, 2011.

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 acute findings.

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 Dr. Suesberry.

14. On January 20, 2011, Dr. Suesberry performed a closed reduction surgery to repair plaintiff’s fractured mandible.

15. On January 21, 2011, defendant Dr. Mui determined that plaintiff was doing well after the surgery and that discharge was appropriate.

16. Plaintiff was discharged from Mercy Hospital on January 21, 2011, and was transported back to the medical facility at CSATF.

17. Defendant did not render further care after plaintiff’s discharge.

18. On April 3, 2012, plaintiff was medically declared permanently mobility impaired in his left hip and leg.

         B. Disputed Facts

1. Whether defendant Dr. Mui told plaintiff that he was not treating his left knee, and that he was admitted only for the mandibular fracture.

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.

         C. Disputed Evidentiary Issues^[2]

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 injuries.

         Additionally, 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.

         D. Special Factual Information

         None.

         V. Relief Sought

         Plaintiff 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 relief.^[3]

         VI. Points of Law

         A. Section 1983

         The 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.

         Section 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).

         B. Eighth Amendment Claim- Medical Claim

         While 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).

         The 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).

         Deliberate 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.

         Finally, “[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).

         C. Physical Injury Required for Mental and Emotional Damages

         The 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.

         D. Punitive Damages

         Plaintiff 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).

         E. Federal Rules of Evidence

         Federal 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.^[4] 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.

         VII. Aba ...