United States District Court, E.D. California
AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN
PART (ECF NOS. 99 & 127) OBJECTIONS, IF ANY, DUE WITHIN
TWENTY ONE DAYS ORDER DENYING DEFENDANTS' MOTION TO
STRIKE PLAINTIFF'S RESPONSE TO REPLY TO DEFENDANTS'
REPLY TO MOTION FOR SUMMARY (ECF NO. 114) JUDGMENT
Meador ("Plaintiff") is a state prisoner proceeding
pro se and in forma pauperis with this
civil rights action pursuant to 42 U.S.C. § 1983. This
action now proceeds on the First Amended Complaint, filed on
September 22, 2015, against defendants Garza, Sellers,
Moon, Nguyen, Clark, Kim, and Gill (collectively,
“Defendants”) on Plaintiff's claims for
deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. (ECF Nos. 30, 36, 37,
November 29, 2016, Defendants filed a motion for summary
judgment. (ECF No. 99). On January 6, 2017, Plaintiff filed his
opposition to the motion for summary judgment ECF No. 108),
declaration in support of the opposition to the motion for
summary judgment (ECF No. 108-1, p. 177 & ECF No. 108-2
pgs. 1-11), and his statement of disputed facts (ECF No 109).
Plaintiff also incorporated his First Amended Complaint into
his opposition by reference. (ECF No. 108, p. 15). On January
13, 2017, Defendants filed a reply. (ECF No. 111). On January
27, 2017, Plaintiff filed what the Court construes as a
surreply. (ECF No. 113). On January 30, 2017, Defendants
filed a motion to strike Plaintiff's surreply. (ECF No.
114). On February 23, 2017, Plaintiff objected to
Defendants' motion to strike. (ECF No. 115).
some confusion regarding whether Plaintiff abandoned parts of
a claim, on March 30, 2017, the Court allowed Defendants to
file a supplemental motion for summary judgment. (ECF No.
121). On April 17, 2017, Plaintiff filed a “belated
notice of medical records are authenticated by defense
counsel as her own evidence in the summary judgment
motion.” (ECF No. 125). On April 18, 2017, Defendants
filed their supplemental motion for summary judgment. (ECF
No. 127). On April 27, 2017, Plaintiff filed his opposition
to the supplemental motion for summary judgment. (ECF No.
131). On May 1, 2017, Defendants filed their reply. (ECF No.
133). Because it appeared that Plaintiff may have filed his
opposition to the supplemental summary judgment motion before
actually receiving a copy of it, the Court allowed Plaintiff
to file another opposition. (ECF No. 134). On May 11, 2017,
Plaintiff filed his second opposition to the supplemental
motion for summary judgment. On May 19, 2017, Defendants filed
their reply. (ECF No. 138).
motion for summary judgment, supplemental motion for summary
judgment, and motion to strike are now before the Court. For
the reasons that follow, the Court will recommend that
Defendants' motions for summary judgment be granted in
part and denied in part. Additionally, the Court will deny
Defendants' motion to strike.
DEFENDANTS' MOTION TO STRIKE
ask the Court to strike Plaintiff's surreply because it
is an impermissible attempt by Plaintiff to file additional
facts in opposition to the motion for summary judgment. (ECF
No. 114). Plaintiff filed a response, stating that he is not
an attorney, has no access to a law library, is not well
versed in law, and has a GPL of 2.9. (ECF No. 115). Plaintiff
further asserts that allowing Plaintiff to file his surreply
will not prejudice Defendants. (Id.).
Plaintiff's lack of legal sophistication, as well as the
lack of prejudice to Defendants in allowing Plaintiff to file
a surreply, the Court will treat the surreply as including a
request to file a surreply, and grant it nunc pro
tunc. Accordingly, Defendants' Motion to strike will
the Court notes that the surreply does not change the
Court's analysis. Most of the surreply involves Plaintiff
summarizing evidence he previously submitted and reiterating
facts he has already alleged. (ECF No. 113, pgs. 1-3).
surreply, Plaintiff also alleges that he was not able to
prepare his opposition to the motion for summary judgment
satisfactorily because there is no law library where
Plaintiff is housed. (Id. at p. 1). However,
Plaintiff himself has admitted that there is a law library
where he is housed; he just does not believe it is adequate.
(ECF No. 110, pgs. 1-2). Plaintiff also stated that he
received a law book from a fellow inmate, which he utilized
in preparing his opposition to the motion for summary
judgment. (Id. at p. 2). Given this, as well as the
instructions Plaintiff received on how to oppose a motion for
summary judgment (ECF No. 99, pgs. 1-3; ECF No. 127-1, pgs.
1-3), the additional time the Court already gave Plaintiff to
file his opposition (ECF No. 103), the fact that Plaintiff
was able to file an opposition to the motion for summary
judgment, a statement of disputed facts, a surreply, and two
oppositions to the supplemental motion for summary judgment
(ECF Nos. 108, 109, 113, 131, & 136), and the fact that
it does not appear that additional research from Plaintiff
would be helpful, the Court finds that Plaintiff was able to
adequately prepare his oppositions and surreply and is not
prejudiced by the Court ruling on Defendants' motions for
summary judgment without giving Plaintiff additional time to
research and prepare an additional opposition to the motions
for summary judgment.
PLAINTIFF'S ALLEGATIONS IN THE COMPLAINT
was housed at California State Prison, Corcoran
(“CSPC”) when the events giving rise to this
action took place. Plaintiff alleges the following.
suffers from chronic lower back pain as a result of normal
wear and tear and a motorcycle accident prior to
imprisonment. The pain did not affect his ability to walk,
work, or engage in recreational activities.
suffered from chronic problems related to heart disease and
diabetes. He received frequent adenosine and insulin
injections, blood tests, and other intravenous (IV)
administration for his problems. At various times, he also
suffered from Hepatitis A, B, and C, which also required
frequent injections, IVs, and/or blood tests for treatment.
around the beginning of May of 2012, Plaintiff was diagnosed
with spondylolysis and/or spondylolisthesis at the L5-S1
vertebrae of his spine.
around the spring of 2012, Plaintiff was transferred from
California State Prison- Sacramento to CSPC. Between April
2012 and February 2014, Defendants provided medical treatment
to Plaintiff. Defendants knew or should have known of
Plaintiff's medical conditions and personal history.
medical facility and instruments were unsanitary and staff
did not take the precautions necessary to sterilize the
environment and all medical tools. Staff administered a
series of injections and IV treatments to Plaintiff using the
unsanitary equipment. As a result of receiving injections,
IVs, and/or blood tests for his various medical ailments in
the unsanitary conditions at CSP, Plaintiff developed a
severe infection of the spine referred to as
or around May or June of 2012, Plaintiff presented symptoms
of discitis/osteomyelitis in his spine, including severe and
debilitating pain that impeded him from walking. For more
than eight months, Plaintiff was not provided the
examinations, monitoring, and testing required to identify
and treat the disease. The infection was finally identified
and treated by medical professionals outside of CSPC when
they fortuitously identified the disease while treating him
for an unrelated heart-related problem.
in or around April of 2012, Plaintiff made a series of
complaints about this new back pain that affected his ability
to walk and bend or lift his left leg. He also reported
suffering from chills. In response, he was given a walker by
medical staff at CSPC .
around May of 2012, the back pain became unbearable and
Plaintiff filed an emergency medical appeal. He was examined
by medical staff and was told the pain was caused by a torn
oblique muscle. He was not provided special housing for his
pain and inability to walk.
continued to complain of abnormal back pain and an inability
to move, sit, and walk. He was bed ridden and authorized to
eat and stay in his cell. He frequently cried and
hyperventilated in response to the pain that he rated a 10
out of 10. He advised medical staff that these were new
staff determined that the degree of pain claimed by Plaintiff
exceeded their findings and found that he was not a surgical
candidate, but instead was acting “irrational.”
Staff informed Plaintiff that he had a crushed disc in his
back, and that the pain was muscular in origin. They
recommended he exercise more frequently and gave him a
pamphlet regarding back pain. They also prescribed additional
pain, anti-inflammatory, and muscle relaxant medications.
around July or August of 2012, Plaintiff could no longer move
or stand without assistance. He reported severe back pain
that radiated into his chest and affected his abilities to
move his left leg and walk. He fell down while alone in his
cell on several occasions, severely injuring his back against
the toilet on one occasion. He fell because he was confined
to a cell without the assistance required to move in light of
his spinal infection, including the walker that had been
ordered for him in April of 2012.
medical staff reviewed an X-ray of Plaintiff's spine,
which did not reveal any new problems in Plaintiff's
back. The imaging was not sufficiently sensitive to detect
discitis/osteomyelitis. He was discharged without treatment
for the infection.
June 2012 and February 2013, Plaintiff submitted more than 30
complaints and/or requests for medical treatment concerning
his back pain. He requested an MRI and surgical intervention
on several occasions. Many of his complaints were not
recorded by staff. Additionally, staff did not accurately and
fully record facts affecting his medical care, nor did staff
report all of the details concerning his medical problems,
including that on several occasions Plaintiff was found in
his cell unable to move after defecating and/or urinating on
himself. In response, staff did not order or perform MRI
and/or CT scans.
physical health deteriorated over time due to the spinal
infection. He stopped showering, changing his clothes, and
even “bird-bathing, ” due to the pain. He lost
control of his bodily functions and suffered frequent
involuntary bowel movements and/or urination. Other times, he
could not void himself completely. He often relied on
non-medical staff and cell mates to eat, dress, go to the
bathroom and generally care for himself.
mental health also deteriorated. He became increasingly
depressed, hypervigilant, and paranoid. He felt completely
helpless and lost all hope of receiving the necessary
around October of 2012, nursing staff failed to fully and
accurately report Plaintiff's complaints and facts
surrounding his deteriorating condition, and/or intervene to
provide the medical care needed to treat his back. Plaintiff
resorted to pleading with a mental health technician about
his medical care. The technician reported his complaints to
medical staff, but medical staff failed to examine, monitor,
or test Plaintiff for discitis/osteomyelitis.
around December of 2012, Plaintiff was again denied medical
treatment when prison nurses failed to fully and accurately
report his complaints. Plaintiff again resorted to pleading
with nonmedical staff including correctional officers Miranda
and Pardo. Medical staff refused to examine, monitor, or test
Plaintiff for discitis/osteomyelitis.
around February of 2013, Plaintiff was taken to San Joaquin
Community Hospital (“SJCH”) for symptoms related
to a purported heart attack. Examination by doctors at SJCH
revealed significant disc narrowing. An MRI confirmed the
presence of discitis/osteomyelitis at the T12-L1 vertebrae. A
biopsy revealed scattered soft tissue and bone fragments
infiltrated by neutrophils consistent with acute
discitis/osteomyelitis. Doctors at SJCH concluded that the
infection caused Plaintiff's pain and rendered him
paralyzed. SJCH doctors informed Plaintiff that the infection
was equivalent to having a broken back. Plaintiff was advised
that the infection had spread and eaten away at the vertebrae
due to lack of prior treatment by medical staff at CSPC. The
doctors concluded that surgery was too dangerous, and
therefore Plaintiff was placed on an aggressive medication
regimen involving the administration of some of the strongest
antibiotic prescription drugs available, Vancomycin and
approximately February and April of 2013, Plaintiff was
treated for the infection in his spine with antibiotics. A
peripherally inserted central catheter (“PICC
Line”) was subsequently implemented to administer the
medication. In or around April or May of 2013, staff at CSPC
discontinued Plaintiff's antibiotics. They noted an MRI
was needed to determine if there was any residual
discitis/osteomyelitis, but they did not perform or direct
others to perform an MRI or CT scan. The severe pain in
Plaintiff's back returned and he was unable to walk
around May to June of 2013, Plaintiff made a number of
complaints of severe back pain that prevented him from moving
or walking. He was not examined by medical staff for more
than three weeks. When he was finally examined, the pain was
so severe that Plaintiff had to be taken back to SJCH.
SJCH, Plaintiff reported cramps and spontaneous vomiting to
medical staff. He said the pain in his back went through his
chest. An MRI revealed total obliteration of the disc space
at the T12-L1 vertebra, which had decreased Plaintiff's
body height, and diffuse marrow edema, which confirmed
medical staff again recommended that Plaintiff undergo
antibiotic treatment rather than surgical intervention due to
risks of paralysis. Plaintiff was advised that his clinical
course for improvement would take longer due to the lack of
prior treatment of the infection and surgical intervention.
They hoped that a qualified physician could provide
corrective lumbar instrumentation after the infection was
cured. They recommended use of a custom medical corset, which
the California Department of Corrections and Rehabilitation
(“CDCR”) refused to provide because Plaintiff
could not afford to pay the $1, 400.00 cost of the brace.
resumed heavy antibiotic treatment in or around July 2013. He
continued to experience significant pain and was unable to
walk, stand, or lay down for extended periods of time. He
worried constantly that the infection would spread, that the
potent antibiotics would have lasting consequences, and that
paralysis would occur at any moment. Mental health staff
noted that he was even more anxious, depressed, agitated, and
distressed than in 2012. In diagnosing Plaintiff, they
identified his Axis III problems as spinal infection.
November of 2013, Plaintiff could still not fully ambulate or
walk for any significant distance. He was taken to SJCH where
an MRI revealed that the infection was subsiding. However,
the imaging revealed fusing of the T12-L1 vertebral bodies,
canal narrowing, and permanent injuries to Plaintiff's
spine. Additionally, medical staff identified a new area of
abnormality on the superior end plate of the T11 vertebrae of
Plaintiff's spine, which was confirmed to be a lesion.
They believed that it was imperative for an expert in
neurosurgery or spinal orthopedic surgery to evaluate
Plaintiff for surgical intervention, but the only local
surgeon could not perform the surgery. Plaintiff was
discharged and returned to CSPC without any such evaluation.
injuries have substantially diminished his quality of life.
He can no longer exercise, play handball, or engage in yoga.
He frequently falls due to an inability to support his own
body weight. He cannot walk without support for more than a
handful of steps and will never regain the ability to do so.
His mental health has increasingly deteriorated. He can no
longer work in prison industries or fix electronic devices,
which generated income of approximately $600 per month. He
has spent approximately $300 for a wheelchair, $46 for a
cane, and $53 for a brace. He must spend approximately $5 per
month for medication. He cannot afford the $1, 400 necessary
to obtain the custom corset prescribed by doctors.
infection in Plaintiff's spine led to the development of
a lesion on his T11 end plate vertebrae. The lesion could
lead to paralysis. The lesion was caused by the spinal
infection that went untreated and unidentified by Defendants.
Court found a cognizable claim for deliberate
indifference to serious medical needs against Garza and
Sellers because Plaintiff stated “he was in severe pain
and made repeated statements to Garza and
Sellars of his condition, but Garza and Sellars
ignored, failed to respond, and/or failed to accurately
record his complaints and requests for care. Plaintiff claims
this was despite the fact that Plaintiff was no longer able
to walk or care for himself, and was involuntarily defecating
and urinating on himself.” (ECF No. 36, p. 9).
Court also found a cognizable claim for deliberate
indifference to serious medical needs against defendants Aye,
Moon, Nguyen, Clark, Kim, Smith, and Gill, because,
“[a]lthough Plaintiff concedes Defendants provided
medical care, his allegations demonstrate that they
persistently ignored his complaints of severe pain and the
deterioration of his physical condition. Further, Plaintiff
alleges that Defendants' medical care and the failure to
provide appropriate tests were medically unacceptable under
the circumstances, and this course of action was chosen in
conscious disregard of an excessive risk to his
health.” (Id. at 10).
Court found no other cognizable claims. (Id. at 11).
Court gave Plaintiff the choice of filing an amended
complaint or notifying the Court that he was willing to
proceed only on the cognizable claims. (Id.).
Plaintiff elected to proceed only on the claims found
cognizable by the Court. (ECF No. 37).
judgment in favor of a party is appropriate when 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); Albino v. Baca
(“Albino II”), 747 F.3d 1162, 1169 (9th
Cir. 2014) (en banc) (“If there is a genuine dispute
about material facts, summary judgment will not be
granted.”). A party asserting that a fact cannot be
disputed must support the assertion by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials, or showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed.R.Civ.P.
moving for summary judgment “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 Fed.R.Civ.P.
56(c). If the moving party moves for summary judgment on the
basis that a material fact lacks any proof, the court must
determine “whether a fair-minded jury could reasonably
find for the [non-moving party].” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)
(“The mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably
find for the plaintiff.”). “[A] complete failure
of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts