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Simmons v. Grissom

United States District Court, E.D. California

May 19, 2017

CHRISTOPHER I. SIMMONS, Plaintiff,
v.
GRISSOM, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANT DR. AKANNO'S MOTION FOR SUMMARY JUDGMENT BE GRANTED [ECF NO. 179]

         Plaintiff Christopher I. Simmons is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendant Dr. Akanno's motion for summary judgment, filed May 18, 2016.

         I.

         RELEVANT HISTORY

         This action is proceeding against Defendants This action is proceeding against Defendants Grissom, Keiley and St. Lucia for deliberate indifference toward Plaintiff's “heat risk” condition, in violation of the Eighth Amendment, against Defendants Rients and Akanno for deliberate indifference arising from the deprivation of Plaintiff's pain medication, in violation of the Eighth Amendment, and against Defendants Rients and Akanno for retaliation, in violation of the First Amendment.[1]

         On May 18, 2016, Defendant Dr. Akanno filed a motion for summary judgment.[2], [3] Plaintiff filed an opposition on August 31, 2016, [4] and Dr. Akanno filed a reply on September 15, 2016. Accordingly, pursuant to Local Rule 230(1), this motion is deemed submitted for review without oral argument.

         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 Mut. 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 Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).

         In resolving cross-motions for summary judgment, the Court must consider each party's evidence. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case. In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).

         In judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, Soremekun, 509 F.3d at 984 (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).

         In arriving at this recommendation, the Court has 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.

         III.

         DISCUSSION

         A. Summary of Plaintiff's Complaint [5]

         On July 28, 2006, Defendant Akanno violated Plaintiff's Eighth Amendment rights when he “denied the benefits of hot packs for PLAINTIFF's serious medical needs, and based that decision on PLAINTIFF not being granted an “extra privilege.” (First Am. Compl. ¶ 20.)

         On August 22, 2007, Defendant Akanno “conspired to cover-up the illegal actions of Sauceda when Defendant Akanno changed the medical order from every eight hours to BID or every 12 hours ... despite PLAINTIFF's specific requested action not to change the medical order as a reprisal, violating PLAINTIFF's 1st Amendment right.” (Compl. ¶ 32.) Plaintiff filed a grievance regarding his medication. (Compl. ¶ 33.)

         B. Defendant's Statement of Undisputed Facts [6]

         1. At all relevant times to his claims, Plaintiff was incarcerated in Facility A at Kern Valley State Prison (“KVSP”) in Delano, California. (Compl. ¶ 2, ECF No. 45; Jeffery Decl., ¶ 2, Ex. A, Dep. 20:11-21:20.)

         2. Plaintiff claims he suffers from chronic severe debilitating pain due to congenital failure segmentation at ¶ 2-3 and his lumbar spine. (Compl. ¶ 27, ECF No. 45.)

         3. Plaintiff admits that narcotics have effectively treated his chronic pain. (Compl. ¶ 27, ECF No. 45.)

         4. On December 30, 2005, Dr. Akanno treated Plaintiff regarding his chronic care needs. During the visit, Plaintiff reported adhering to his pain regimen. At the conclusion of the exam, Dr. Akanno prescribed a 30 day prescription for Vicodin and continued Plaintiff's medications for his other conditions. (Akanno Decl., ¶ 4, Ex. A.)

         5. On January 26, 2006, Dr. Akanno again treated Plaintiff. During the exam, Plaintiff requested a change in analgesics. Dr. Akanno prescribed a 30 day prescription for Hydrocodone. (Akanno Decl., ¶ 5, Ex. B.)

         6. On February 9, 2006, Dr. Akanno examined Plaintiff. During this visit, Plaintiff reported having back pain due to his back surgery and specifically complained of discomfort when utilizing his lower back. Dr. Akanno adjusted the medication regimen by prescribing a daily double dose of Roxicet, a narcotic commonly used for moderate to severe pain. Dr. Akanno also discontinued the Vicodin. (Akanno Decl., ¶ 6, Ex. C.)

         7. On July 28, 2006, Plaintiff again met with Dr. Akanno. Plaintiff requested a medical order for a hot pot. Plaintiff claimed he needed the hot pot to make heat packs in his cell at night to help alleviate back pain. (Jeffery Decl., ¶ 2. Ex. A, ...


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