United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. Pending
before the court are plaintiff's motion to re-open
discovery (ECF No. 58), plaintiff's motion to amend (ECF
No. 59), and defendant Sacramento County's motion for
summary judgment (ECF No. 52.) Defendant moves for summary
judgment on the grounds that plaintiff failed to exhaust
administrative remedies and on the merits of plaintiff's
reasons stated herein, plaintiff's motion to re-open
discovery is denied. The undersigned recommends that
plaintiff's motion to amend be granted in part and denied
in part, and that defendant's motion for summary judgment
Motion to Amend and Motion to Re-Open Discovery
Motion to Re-Open Discovery
action proceeds on the amended complaint filed October 26,
2015, as to defendant Sacramento County. (ECF No 7.)
Plaintiff alleges that while he was housed at the Sacramento
County Jail, he did not receive prescription drug treatment
for hepatitis C pursuant to an official county policy not to
test, treat or cure hepatitis C. In the pending summary
judgment motion, defendant states that at his deposition,
plaintiff clarified that he is claiming that defendant had an
official policy to treat hepatitis C, but did not follow it.
(ECF No. 52-2 at 2.) In his opposition to defendant's
summary judgment motion, plaintiff agrees that he is suing
defendant on this theory. (ECF No. 65 at 12.) The parties
agree that defendant's official policy for treating
inmates with hepatitis C is called “Policy 1741.”
pending motion to re-open discovery, plaintiff argues that
defendant misled plaintiff concerning the official policy for
hepatitis C treatment for over one year. (ECF No. 58 at 1.)
Plaintiff argues that he was always told “by defendant
that it was their policy not to treat hepatitis
C…plaintiff only found out through internal affairs
the truth that they have a policy to treat [hepatitis C] in
early October 2016.” (Id.) Plaintiff seeks
additional time to conduct discovery regarding this policy.
of a scheduling order requires a showing of good cause,
Fed.R.Civ.P. 16(b), and good case requires a showing of due
diligence. Johnson v. Mammoth Recreations, Inc., 975
F.2d 604, 609 (9th Cir. 1992). To establish good cause, the
party seeking the modification of a scheduling order must
generally show that even with the exercise of due diligence,
they cannot meet the requirement of the order. Id.
to the June 1, 2016 discovery and scheduling order, the
discovery deadline was October 7, 2016. (ECF No. 31.)
Plaintiff filed the pending motion to re-open discovery on
December 28, 2016. Plaintiff seeks to reopen discovery based
on information he learned in early October 2016. Plaintiff
does not explain why he waited almost three months, after
learning about defendant's policy to treat hepatitis C,
to request additional time to conduct discovery. For this
reason, the undersigned finds that plaintiff has not shown
to succeed on either theory, i.e. that defendant had an
official policy to treat hepatitis C but failed to follow it,
or defendant had an official policy not treat to treat
hepatitis C, plaintiff must demonstrate that he qualified for
the prescription drug treatment. As discussed herein,
plaintiff has not met this burden. For this additional
reason, plaintiff has not demonstrated good cause to re-open
reasons discussed above, plaintiff's motion to re-open
discovery is denied.
Motion to Amend
December 28, 2016, plaintiff filed a motion for leave to file
a second amended complaint and proposed second amended
complaint. (ECF Nos. 55, 59.) On January 11, 2017, defendant
filed an opposition to the motion to amend. (ECF No. 64.)
to amend are governed by Rule 15(a) of the Federal Rules of
Civil Procedure. Rule 15(a) provides that the Court
“should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). In the Ninth Circuit,
Rule 15(a) is applied with “extreme liberality.”
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1051 (9th Cir. 2003).
the court retains discretion to grant or deny a motion for
leave to amend. Leadsinger, Inc. v. BMG Music Pub.,
512 F.3d 522, 532 (9th Cir. 2008). The court considers five
factors when assessing the propriety of a motion for leave to
amend: (1) bad faith, (2) undue delay, (3) prejudice to the
opposing party, (4) futility of amendment, and (5) whether
the plaintiff has previously amended his complaint. Allen
v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir.
1990). The court “need not apply all five
factors” when two factors sufficiently persuade the
court to deny the motion. Id.
proposed second amended complaint names as defendants
Sacramento County and County Health Services
(“CHS”). (ECF No. 55 at 1.) Plaintiff alleges
that a nurse and Dr. Padilla told him that it was CHS policy
not to treat hepatitis C. Plaintiff alleges that Dr. Padilla
told him that it was cheaper to let him die. (Id. at
2.) Plaintiff alleges that his hepatitis C required medical
treatment. (Id. at 3-4.) Plaintiff alleges that
defendants, “against administrative policy have
accepted and adopted a common practice” to deny
plaintiff prescription drug treatment for hepatitis C.
(Id. at 4.)
outset, the undersigned agrees with defendant that CHS is not
a proper defendant. According to defendant, CHS is a
non-independent subsidiary of Sacramento County. Under §
1983, a “person” may be sued for the deprivation
of federal rights, and municipalities or other governmental
bodies may be sued as a “person.” Monell v.
Dept. of Soc. Servs., 436 U.S. 658, 690 (1978). An
agency or department of a municipal entity is not a proper
defendant under Section 1983. Vance v. County of Santa
Clara, 928 F.Supp. 993, 996 (N.D. Cal. 1996). Rather,
the county itself is the proper defendant. Accordingly, CHS
is not a proper defendant.
respect to defendant Sacramento County, plaintiff's
proposed amendment appears consistent with the legal theory
addressed in defendant's summary judgment motion, as
clarified by plaintiff's deposition testimony, i.e.,
defendant had a policy to provide prescription drug treatment
for inmates with hepatitis C, but failed to follow it. In the
opposition to the pending motion, defendant states that
“plaintiff's claims concerning the treatment he was
provided for his hepatitis C have been fully addressed in the
summary judgment motion and plaintiff's motion to amend
should be denied as futile because no new claims are
raised.” (ECF No. 64 at 6.)
undersigned agrees that a motion for leave to amend is futile
if it can be defeated on a motion for summary judgment.
Gabrielson v. Montgomery Ward & Co., 785 F.2d
762, 766 (9th Cir. 1986). However, plaintiff is attempting to
amend his complaint to include the legal theory addressed in
defendant's summary judgment motion. Allowing plaintiff
to amend his complaint to conform to the theory addressed in
the summary judgment motion is not futile.
also argues that it would be prejudiced were the court to
grant the motion to amend because it would require defendant
to conduct additional discovery, although defendant does not
specifically identify this discovery. Because defendant's
summary judgment motion is based on the theory raised in the
proposed second amended complaint, it is difficult to
determine what additional discovery would be required.
all of the factors set forth above, the undersigned finds
that plaintiff should be allowed to file a proposed second
amended complaint as to his claims against defendant
Sacramento County that are consistent with the claims
addressed in the pending summary judgment motion.
Plaintiff's motion to amend to name CHS as a defendant
should be denied as well as any claims inconsistent with
those addressed in the summary judgment motion.
for the reasons discussed above, the undersigned recommends
that plaintiff's motion to amend be granted in part and
denied in part.
Motion for Summary Judgment
Legal Standard for Summary Judgment
judgment is appropriate when it is demonstrated that the
standard set forth in Federal Rule of Civil procedure 56 is
met. “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).
Under summary judgment practice, the moving party always
bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ” which it believes demonstrate the
absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting then-numbered Fed.R.Civ.P. 56(c)).
the nonmoving party bears the burden of proof at trial, the
moving party need only prove that there is an absence of
evidence to support the non-moving party's case.”
Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In
re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th
Cir. 2010) (citing Celotex Corp., 477 U.S. at 325);
see also Fed.R.Civ.P. 56 advisory committee's
notes to 2010 amendments (recognizing that “a party who
does not have the trial burden of production may rely on a
showing that a party who does have the trial burden cannot
produce admissible evidence to carry its burden as to the
fact”). Indeed, summary judgment should be entered,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial. Celotex Corp., 477 U.S. at 322. “[A]
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Id. at 323.
if the moving party meets its initial responsibility, the
burden then shifts to the opposing party to establish that a
genuine issue as to any material fact actually exists.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of such a factual dispute, the
opposing party may not rely upon the allegations or denials
of its pleadings, but is required to tender evidence of
specific facts in the form of affidavits, and/or admissible
discovery material in support of its contention that such a
dispute exists. See Fed.R.Civ.P. 56(c);
Matsushita, 475 U.S. at 586 n.11. The opposing party
must demonstrate that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987), and that the dispute is genuine,
i.e., the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, see Wool v.
Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.
1987), overruled in part on other grounds,
Hollinger v. Titan Capital Corp., 914 F.2d 1564,
1575 (9th Cir. 1990).
endeavor to establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., 809 F.2d at 630.
Thus, the “purpose of summary judgment is to
‘pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.'”
Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P.
56(e) advisory committee's note on 1963 amendments).
resolving a summary judgment motion, the court examines the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any.
Fed.R.Civ.P. 56(c). The evidence of the opposing party is to
be believed. See Anderson, 477 U.S. at 255. All
reasonable inferences that may be drawn from the facts placed
before the court must be drawn in favor of the opposing
party. See Matsushita, 475 U.S. at 587.
Nevertheless, inferences are not drawn out of the air, and it
is the opposing party's obligation to produce a factual
predicate from which the inference may be drawn. See
Richards v. Nielsen Freight Lines, 602 F.Supp. 1224,
1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898,
902 (9th Cir. 1987). Finally, to demonstrate a genuine issue,
the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts. .
. . Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no ‘genuine issue for trial.'”
Matsushita, 475 U.S. at 586 (citation omitted).
contemporaneous notice provided on August 16, 2013(ECF No.
22), plaintiff was advised of the requirements for opposing a
motion brought pursuant to Rule 56 of the Federal Rules of
Civil Procedure. See Rand v. Rowland, 154 F.3d 952,
957 (9th Cir. 1998) (en banc); Klingele v.
Eikenberry, 849 F.2d 409 (9th Cir. 1988).
Discussion re: Merits
“A prison official's ‘deliberate
indifference' to a substantial risk of serious harm to an
inmate violates the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 828 (1994). “Although the
Fourteenth Amendment's Due Process Clause, rather than
the Eighth Amendment's protection against cruel and
unusual punishment, applies to pretrial detainees...we apply
the same standards in both cases.” Simmons v.
Navajo County, Ariz., 609 F.3d 1011, 1017 (9th Cir.
2010) (citation omitted).
In the Ninth Circuit, the test for deliberate indifference
consists of two parts. First, the plaintiff must show a
‘serious medical need' by demonstrating that
‘failure to treat a prisoner's condition could
result in further significant injury or the unnecessary and
wanton infliction of pain.' Second, the plaintiff must
show the defendant's response to the need was
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
legal standard for liability for defendant Sacramento County
follows herein. “In Monell v. Department of Social
Services, 436 U.S. 658 (1978), the Supreme Court held
that a municipality may not be held liable for a § 1983
violation under a theory of respondeat superior for the
actions of its subordinates.” Castro v. County of
Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). In
this regard, “[a] government entity may not be held
liable under 42 U.S.C. § 1983, unless a policy,
practice, or custom of the entity can be shown to be a moving
force behind a violation of constitutional rights.”
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th
Cir. 2011) (citing Monell, 436 U.S. at 694).
Dispute Regarding Policy 1741
discussed above, defendant's policy for treating inmates
with hepatitis C is Policy 1741. Plaintiff submitted a
request for a copy of this policy directly to the Sacramento
Sheriff's Department, which plaintiff refers to as
“internal affairs.” (See ECF No. 47.) In
response to this request, the Sacramento County Sheriff's
Department, i.e., “internal affairs, ” provided
plaintiff with an older version of Policy 1741. (See
ECF Nos. 60, 62.) The policy plaintiff received from
“internal affairs” was in effect from
approximately 2007 until September 2015. (ECF No. 62-1 at 2.)
was housed at the Sacramento County Jail from June 2015 to
June 2016. As discussed herein, the newer version of Policy
1741 was in effect at the time plaintiff sought treatment for
hepatitis C. In the opposition to the pending motion,
plaintiff argues that he qualified for prescription drug
treatment under the older version of Policy 1741.
either version of Policy 1741, plaintiff must show that his
failure to receive prescription drug treatment violated the
Fourteenth Amendment. As discussed herein, plaintiff has not
met this burden. In determining the standard of care for
prescription drug treatment, the undersigned herein discusses
the differences between the older and newer versions of
Policy 1741. The other differences between the two policies
are not relevant to plaintiff's claim. However, in
footnotes, the undersigned addresses some of the differences
raised by plaintiff in his opposition to the pending motion.
Facts Regarding Policy 1741
of Sacramento Correctional Health Services
(“CHS”) has in place an express policy that
provides for medically appropriate evaluation and treatment
of inmate-patients with hepatitis C. (ECF No. 52-2 at 2.) County
of Sacramento CHS treatment protocol for hepatitis C is
titled Administrative Policy Number 1741 (“Policy
1741”). (Id.) Policy 1741 ...