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Moore v. Price

United States District Court, E.D. California

June 12, 2017

KEVIN MOORE, Plaintiff,
v.
PRICE, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Kevin Moore, is a state prisoner proceeding pro se and in forma pauperis in an action brought under 42 U.S.C. § 1983. Plaintiff asserts a claim under the Eighth Amendment for deliberate indifference to medical needs. Plaintiff, a diabetic, alleges that defendants failed to give him lunch while transporting him to an offsite medical appointment, which caused him to suffer hypoglycemia.

         Before the court are (1) defendants' motion for summary judgment; (2) plaintiff's motion for reconsideration; and (3) plaintiff's motion for subpoenas. As discussed below, the undersigned recommends that each of these motions e denied.

         I. BACKGROUND

         A. Factual Background

         1. Undisputed Facts

         Plaintiff is an inmate at Deuel Vocational Institution (“DVI”). (ECF No. 44-1 at 4; ECF No. 47 at 5.) Plaintiff is diabetic. (ECF No. 44-1 at 4; ECF No. 47 at 5.) Defendants Parsons, Walls, and Bell are employees of the California Department of Corrections (“CDCR”). (ECF No. 44-1 at 4; ECF No. 47 at 5.) Bell and Walls are correctional officers. (ECF No. 44-4 ¶ 1; ECF No. 44-6 ¶ 1.) Parsons is a correctional lieutenant. (ECF No. 44-7 ¶ 1.) On July 23, 2013, defendants were assigned to transport plaintiff and other inmates to offsite medical appointments. (ECF No. 44-1 at 4; ECF No. 47 at 5.) Defendants left DVI around 1:00 p.m. for appointments scheduled between 1:45 and 2:00 p.m. (ECF No. 44-1 at 4; ECF No. 47 at 5.)

         2. Plaintiff's Version of the Facts

         On said date, plaintiff had a follow-up appointment with an eye doctor regarding recent laser surgery to relieve eye pressure. (ECF No. 47 at 2.) Before leaving, plaintiff informed defendants that he had recently received his noon insulin shot and had not eaten lunch. (Id.) Plaintiff got sick while waiting at the doctor's office. (Id.) He informed Parsons that: (1) he was feeling shaky, nervous, confused, light-headed, and nauseated; (2) his heart was pounding; and (3) he had blurred vision. (Id.) Plaintiff asked Parsons to inform the doctor that he was experiencing hypoglycemia. (Id.) But he did not see defendants inform the doctor or any medical staff about the problem. (Id.) Nor did defendants tell him that they had done so. (Id.)

         Parsons told plaintiff that he “was not going to die and would feel better one [he] got [his] ass [back] in the van.” (Id.) On the way back to DVI, plaintiff told defendants that he was in “emergency need of medical care.” (Id.) Defendants ignored him. (Id. at 3.) It is undisputed that defendants stopped at a hamburger restaurant to get themselves food and/or drinks. (Id. at 3, 39-41.) Plaintiff sat in the van while they were inside. (Id. at 3.) He was trembling, sweating, and going in and out of consciousness. (Id.)

         The parties agree that they returned to DVI around 5:00 p.m. (ECF No. 44-1 at 5; ECF No. 47 at 5.) Defendants ordered plaintiff out of the van. (ECF No. 47 at 3.) He tried to stand but collapsed. (Id.) His feet and ankles were swollen. (Id.)

         Plaintiff was transported to the infirmary by wheelchair. (Id.) It is undisputed that his blood sugar was 65, which is low. (Id.; ECF No. 44-5 ¶ 4.) Plaintiff was immediately treated with glucose. (ECF No. 47 at 3.)

         Plaintiff had several follow-up visits with “DVI physician H. Win.” (Id.) During these visits, plaintiff complained about swollen ankles and feet and pain in his back, legs, and scrotum. (Id.) Plaintiff also requested eye drops to treat his increased eye pressure, which had stabilized before the incident. (Id.)

         Dr. Win told plaintiff that his pain was due to nerve damage. (Id.) On November 12, 2013, plaintiff was given “special shoes for [his] swollen ankles and feet.” (Id.)

         On November 19, 2013, plaintiff underwent “trabeculotomy with implantation of an aqueous shunt and scleral grafting” on his left eye. (Id. at 4, 37.) Gregory C. Telsluk, M.D., performed the surgery. (Id.) Dr. Telsluk, Dr. Win, and “DVI physician P. [Nguyen]” told plaintiff that the surgery was due in part to his increased eye pressure. (Id. at 4.) Nearly a month later, Dr. Telsluk performed the same surgery on plaintiff. (Id. at 4, 38.) The same three doctors again told plaintiff that the surgery was due in part to his increased eye pressure. (Id.)

         3. Defendants' Version of the Facts

         Lunches are sometimes provided during transports to medical appointments if they interfere with regularly scheduled meals. (ECF No. 44-1 at 4.) But lunch was not provided during the transport in question because it was expected to be short and not to interfere with regular meal service. (Id.) At the doctor's office, plaintiff asked if lunch had been brought. (Id. at 5.) Walls said no because the transport was short. (Id.) Plaintiff then started to complain “about his diabetes and lunch.” (Id.) Defendants told plaintiff that they would ensure that he received a meal if they returned to DVI after regular dinner service. (Id.) Plaintiff did not exhibit symptoms of hypoglycemia at the doctor's office or during the return trip to DVI. (See id.)

         Walls “personally escorted” plaintiff to the medical clinic when they returned to DVI. (Id. at 5.) The parties agree that, per policy, all inmates who are transported offsite must have a medical examination upon returning to DVI. (Id.; ECF No. 47 at 5.)

         At the medical clinic, plaintiff did not report any “symptoms or concerns” about this low blood sugar. (ECF No. 44-1 at 5.) “He was evaluated, treated, and released.” (Id.)

         All diabetics have hypoglycemic episodes. (Id. at 6.) Plaintiff's diabetes is well-controlled. (Id.) He did not suffer “inadequately controlled glaucoma, increased blood vessel damage, increased eye pressure, pre-mature surgery, [or] increased heart strain” due to the incident in question. (Id.)

         B. Procedural Background

         Plaintiff filed a complaint on May 20, 2014, (ECF No. 1), which he amended on March 24, 2016, (ECF No. 30). He asserts an Eighth Amendment claim for deliberate indifference to serious medical needs. (Id. at 10.) The crux of the amended complaint is that defendants were deliberately indifferent to the hypoglycemic episode described above. He alleges that their deliberate indifference caused him to suffer “further heart strain, kidney damage, eye damage, blood vessel damage[, ] and nerve damage.” (Id. at 8-9.)

         Defendants answered and the case went into discovery. Plaintiff filed a motion to compel, (ECF No. 36), which the court denied, (ECF No. 43). The court noted that plaintiff had requested “additional information” from defendants. (Id. at 4.) This information included “any and all documents that may give instructions to officers as to their duties in the event an inmate falls ill during transport.” (Id.) Apparently, defendants' counsel objected to this request on the ground that it was untimely. (See ECF No. 40-1 ¶ 8.) Yet she indicated that she was willing to look for this information, stating that she contacted the litigation coordinator at DVI at least twice about it. (See id. ¶ 12.) All the same, the court held that these additional requests were “untimely.” (ECF No. 43 at 7.)

         On October 20, 2016, defendants moved for summary judgment. (ECF No. 44.) Defendants argue that plaintiff's claim for deliberate indifference fails because he did not: (1) exhibit symptoms of medical distress; (2) miss any meals; or (3) suffer any serious harm. (ECF No. 44-1 at 1.) Regarding reason (3), defendants argue that plaintiff has no evidence that the hypoglycemic episode harmed him other than “conclusory statements.” (Id.) They further argue that the evidence of his own physician, Dr. Win, shows that his “diabetes is well-controlled and that the . . . incident . . . did not result in . . . permanent harm.” (Id.) Additionally, defendants argue that plaintiff's ÔÇťopinions and ...


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