United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
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.
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
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.)
Plaintiff's Version of the Facts
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.)
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.
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.
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
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.)
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
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.)
Defendants' Version of the Facts
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.)
“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.)
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.”
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.)
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
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.)
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 “opinions and