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Meador v. Aye

United States District Court, E.D. California

August 29, 2017

GORDON DALE MEADOR, Plaintiff,
v.
K. AYE, et al., Defendants.

         FINDINGS 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

         I. BACKGROUND

         Gordon 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, [1]Aye, 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, & 38).[2]

         On November 29, 2016, Defendants filed a motion for summary judgment. (ECF No. 99).[3] On January 6, 2017, Plaintiff filed his opposition to the motion for summary judgment ECF No. 108), [4] a 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).

         Given 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.[5] On May 19, 2017, Defendants filed their reply. (ECF No. 138).

         Defendants' 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.

         II. DEFENDANTS' MOTION TO STRIKE

         Defendants 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.[6] (ECF No. 115). Plaintiff further asserts that allowing Plaintiff to file his surreply will not prejudice Defendants. (Id.).

         Given 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 be denied.

         However, 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).

         In the 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.

         III. PLAINTIFF'S ALLEGATIONS IN THE COMPLAINT

         Plaintiff was housed at California State Prison, Corcoran (“CSPC”) when the events giving rise to this action took place. Plaintiff alleges the following.

         Plaintiff 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.

         Plaintiff 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.

         In or around the beginning of May of 2012, Plaintiff was diagnosed with spondylolysis and/or spondylolisthesis at the L5-S1 vertebrae of his spine.

         In or 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.

         CSPC's 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 discitis/osteomyelitis.

         By in 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.

         Beginning 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 .

         In or 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.

         Plaintiff 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 complaints.

         Medical 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.

         In or 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.

         Thereafter, 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.

         Between 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.

         Plaintiff's 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.

         Plaintiff's mental health also deteriorated. He became increasingly depressed, hypervigilant, and paranoid. He felt completely helpless and lost all hope of receiving the necessary treatment.

         In or 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.

         In or 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.

         In or 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 Daptomycin.

         Between 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 again.

         In or 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.

         At 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 residual discitis/osteomyelitis.

         SJCH 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.

         Plaintiff 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.

         In 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.

         Plaintiff's 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.

         The 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.

         IV. SCREENING ORDER

         The Court[7] 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[8] 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).

         The 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).

         The Court found no other cognizable claims. (Id. at 11).

         The 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).

         V. LEGAL STANDARDS

         a. Summary Judgment

         Summary 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. 56(c)(1).

         A party 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 ...


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