United States District Court, E.D. California
CHARLES A. MILLER, Plaintiff,
M. ADONIS, et al., Defendants.
FINDINGS AND RECOMMENDATION TO GRANT DEFENDANTS'
MOTION TO STRIKE, GRANT DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, AND DENY PLAINTIFF'S REQUESTS FOR JUDICIAL
NOTICE (ECF Nos. 110, 124, 140, 141)
Charles A. Miller is a prisoner in the custody of the
California Department of Corrections and Rehabilitation.
Plaintiff is proceeding pro se in this civil rights
action pursuant to 42 U.S.C. § 1983. Defendants Medina
and Chudy move to strike the report of Plaintiff's
inmate-expert Darrell Eugene Harris and move for summary
judgment on all remaining claims. Plaintiff has filed two
requests for judicial notice.
reasons stated herein, the undersigned recommends granting
Defendants' motion to strike and motion for summary
judgment, and denying Plaintiff's requests for judicial
case proceeds on Plaintiff's Third Amended Complaint
(“TAC”), filed on July 31, 2015. (ECF No. 49) on
the following claims and defendants:
a. A claim of deliberate indifference under the Eighth
Amendment, against defendants Medina, Chudy, and Frederichs;
b. A claim under the Bane Act against defendant Medina;
(ECF No. 69; ECF Nos. 92, 93 (stipulating to dismissal of
Defendants Eddings and Walker with prejudice)). These claims
stem from Plaintiff's allegations that Defendant Chudy
promulgates a policy of not providing prisoners wheelchairs
and walkers despite their medical needs; Defendant Medina was
aware of Plaintiff's medical needs and disregarded them
by ordering Plaintiff to stand on his injured knee and that
Plaintiff suffered injury as a result; and Defendant Medina
threatened Plaintiff with disciplinary action if Plaintiff
did not stand.
October 8, 2018, Defendants Medina and Chudy (collectively
“Defendants”) moved the Court for an order to
strike the report of Plaintiff's inmate-expert Darrell
Eugene Harris and to exclude any testimony of Mr. Harris.
(ECF No. 110). Plaintiff filed an opposition, and Defendants
filed a reply. (ECF Nos. 128, 131).
November 15, 2018, Defendants filed a motion for summary
judgment on the entirety of Plaintiff's remaining claims.
(ECF No. 124). Plaintiff filed oppositions, and Defendants
filed a reply. (ECF Nos. 142, 145, 146).
RELEVANT FACTUAL ALLEGATIONS OF THIRD AMENDED
TAC alleges that following. On March 31, 2009, Plaintiff
suffered an injury to his right knee while getting off an
x-ray table at Community Regional Medical Center
(“CRMC”). After many consultations, Plaintiff
finally received the CT scan on May 29, 2009. It revealed
fractures of the distal femur, proximal tibia, anterior
subluxation, meniscus tears, bone density loss, and
23, 2009, Dr. Menagral told Plaintiff about the results of
his CT scan and renewed the comprehensive accommodation
chrono for use of the wheelchair, walker, cane, and knee
brace pending the orthopedic specialist examination.
was transferred to the Correctional Training Facility
(“CTF”) on September 24, 2009. Before his
transfer, Dr. I. Paja issued a Comprehensive Accommodation
Chrono, physician's order, which ordered that Plaintiff
be provided with a cane, knee brace, walker, and wheelchair
for six months. It should have been effective until March 16,
September 21, 2009, Plaintiff was summoned to the PVSP
medical clinic and told to turn in the wheelchair, walker,
knee brace, and cane for the purpose of being transferred to
CTF on September 24, 2009. Plaintiff was told he could have
these appliances at CTF. Plaintiff told the prison officials
that he could not walk more than fifty feet without his knee
giving out. Plaintiff was given a receipt for the wheelchair.
However, no wheelchair was reissued to him at CTF upon his
September 24, 2009, Plaintiff was transferred from PVSP to
CTF without a lift as had been ordered by Dr. Paja and
approved by prison officials. Upon arrival at CTF, R. Pascual
told Plaintiff that CTF “does not accommodate
wheelchair bound” prisoners and that no knee brace,
wheelchair, or walker was available for him. Plaintiff was
given a cane.
alleges that as of September 24, 2009, Defendant Chudy, the
CTF Chief Medical Officer, was responsible for promulgating
the policy of not providing prisoners in need of wheelchairs,
walkers, and knee braces any appliances regardless of their
filed multiple grievances at CTF requesting medical care and
treatment. In the meantime, Plaintiff was walking on his
right knee only using a cane for support for another five to
saw a CTF physician, Dr. Ahmed, on November 25, 2009. Dr.
Ahmed told Plaintiff he could not order him a wheelchair or
walker because “CTF has an unwritten policy to the
effect that we cannot accommodate prisoner's [sic] with
wheelchair, or walker, needs.” Dr. Ahmed further
explained “it doesn't matter if you need a
wheelchair, walker, or other orthopedic appliance in order to
walk, you won't get one here. You'll need to be
transferred someplace else.” Plaintiff received similar
responses to his 602 grievances, where prison officials
indicated “CTF does not accommodate wheelchair bound
Pt.” Dr. Ahmed prescribed MS contin
(“morphine”) to Plaintiff. Dr. Ahmed also issued
instructions that Plaintiff had a need for a cane, low-bunk,
no stair usage, and no bending restrictions.
January 29, 2010, Plaintiff met with an orthopedic
specialist/surgeon named Dr. Donald Pompan, who recommended
Plaintiff for arthroscopic surgery. Dr. Pompan notes that
Plaintiff should be provided with a wheelchair and/or walker
“if” or “when” needed. Nevertheless,
the prison continued to deny Plaintiff's requests for a
wheelchair and walker in 602 grievances.
January 31, 2010, Defendant Medina, a prison guard, observed
Plaintiff sitting on a wooden bench after the evening meal.
The guard asked why Plaintiff was not standing. Plaintiff
showed Defendant Medina proof of his medical problem.
Nevertheless, Defendant Medina ordered Plaintiff to stand at
his door anyway. After Plaintiff filed 602 grievances
regarding Defendant Medina's conduct, Medina was told
that Plaintiff could be seated in front of his cell when
needed. Even after learning of this decision, Defendant
Medina again ordered Plaintiff to stand by his cell door
while waiting to go to the evening meal. Defendant Medina
threatened Plaintiff with disciplinary action if he did not
stand, and said that he (Medina) did not have to comply with
the directive of his superiors. Plaintiff did as ordered but
reinjured his menisci and suffered excruciating pain as a
MOTION TO STRIKE
move the Court for an order to strike the report of
Plaintiff's inmate-expert Darrell Eugene Harris and to
exclude any testimony of Mr. Harris on the basis that he is
not qualified as an expert under Federal Rules of Evidence
104(a), 702, and 703, and Mr. Harris's opinions are not
relevant and reliable under Federal Rules of Evidence 702 and
703, as well as the standards set forth in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
(ECF No. 110).
to the Federal Rules of Evidence, the district court judge
must ensure that all admitted expert testimony is both
relevant and reliable.” Wendell v. GlaxoSmithKline
LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (citing
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
589 (1993)). “The court must decide any preliminary
question about whether a witness is qualified, ”
Fed.R.Evid. 104(a). Federal Rule of Evidence 702, which
governs expert testimony, provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
proponent of the expert testimony bears the burden of
establishing its admissibility. United States v.
Vera, 770 F.3d 1232, 1243 (9th Cir. 2014); United
States v. 87.98 Acres, 530 F.3d 899, 904 (9th Cir.
2008). “The determination whether an expert witness has
sufficient qualifications to testify is a matter within the
district court's discretion.” United States v.
Abonce-Barrera, 257 F.3d 959, 964 (9th Cir. 2001)
(internal quotation marks omitted) (quoting United States
v. Garcia, 7 F.3d 885, 889 (9th Cir. 1993)). “If
an individual is not qualified to render an opinion on a
particular question or subject, it follows that his opinion
cannot assist the trier of fact with regard to that
particular question or subject.” Morin v. United
States, 534 F.Supp.2d 1179, 1185 (D. Nev. 2005),
aff'd, 244 Fed.Appx. 142 (9th Cir. 2007).
proffered expert is Darrell Eugene Harris. Mr. Harris is a
California state prisoner serving a nineteen-year sentence
after being convicted of rape, incest, and battery.
Harris v. Gipson, No. CV 12-0574-JFW (JEM), 2015 WL
5999255 (C.D. Cal. July 21, 2015), report and
recommendation adopted, 2015 WL 5971548 (C.D. Cal. Oct.
13, 2015). Mr. Harris's alleged expertise derives from
his pre-incarceration experience in the health care
Harris declares that he was a certified nurse's assistant
at Crestview Convalescence Hospital in Rialto, California
from 1974 to 1976. (ECF No. 31 at 2). However, a search of
the California Department of Public Health's L & C
Verification Search Page returned no record of this
certification. (ECF No. 110-8 at 2-3). Mr. Harris states that
he obtained training as an emergency medical technician
(“EMT”) in 1978 and worked as an EMT at Mercy
Ambulance Company from 1978 to 1980. (ECF No. 31 at 2, 3).
Yet neither the California Emergency Medical Services
Authority nor San Bernardino County have any record of Mr.
Harris's EMT certification. (ECF No. 110-9 at 2-3).
Harris states that he received a respiratory care
practitioner's license in 1981 or 1982 and worked as a
respiratory care practitioner at the San Bernardino County
Hospital from 1980 to 1986. Mr. Harris declares that he was
certified in neonatal care in 1986 through the NICU program
at San Antonio Hospital in Upland, California and was
employed there from 1986 to 1990. Harris states he then
worked as a respiratory therapist through Allied Health
Professions from 1990 to 1999. (ECF No. 31 at 2, 3). The
Respiratory Care Board of California certified that Mr.
Harris was issued a respiratory care license in 1986, and the
license was cancelled with an expiration date of December 31,
1999 due to non-renewal of said license for three consecutive
years. (ECF No. 110-10 at 2).
Harris claims that he worked as a certified nurse's
assistant for two years and as a certified EMT for two years.
Mr. Harris received a respiratory care practitioners license
Analysis of Mr. Harris' Relevant Expertise
question before this Court is whether Mr. Harris is qualified
to testify regarding the condition of Plaintiff's knee
and the orthopedic care Plaintiff received. (ECF No. 110-12
(explaining how Mr. Harris was asked to provide an opinion
“whether any employee, or independent contracting
worker, at the CDCR Pleasant Valley State Prison (PVSP) . . .
caused Charles A. Miller to be denied reasonably immediate
and urgent follow up orthopedic consultation, care and
treatment at Community Regional Medical Center-Fresno
hospital . . . as a result of acts or omissions that, to a
degree of medical certainty, fell below the acceptable
standard of care”). Here, Plaintiff has not
demonstrated that Mr. Harris has an understanding of the
field of orthopedics sufficient to provide such an opinion.
He thus has not established that he has the necessary
expertise to determine the proper medical care for
Plaintiff's knee injury in this case.
on Mr. Harris's report, qualifications, and experience,
the Court recommends finding that Mr. Harris has failed to
establish sufficient expertise with respect to the field of
orthopedics to give a medical opinion on that subject in this
case. See, e.g., Avila v. Willits Envtl.
Remediation Tr., 633 F.3d 828, 839 (9th Cir. 2011)
(finding witness, who had degrees in chemistry and
specialized in cancer immunology and biology, basic and
clinical immunology, and medical toxicology, lacked expertise
to opine on whether burning solvents at defendant
company's sites resulted in toxic amounts of dioxins
because witness had no special training or knowledge
regarding metal working industries); United States v.
Redlightning, 624 F.3d 1090, 1115 (9th Cir. 2010)
(finding expert neuropsychiatrist, whose expertise included
analysis of defendant's mental condition, was not
qualified to testify about physical symptoms of hypoglycemia
or whether defendant was susceptible to giving false
confession during a police interrogation); United States
v. Chang, 207 F.3d 1169, 1172-73 (9th Cir. 2000)
(finding “extremely qualified” international
finance expert was properly precluded from testifying about
authenticity of certificate at issue because
detection/identification of counterfeit securities was beyond
the undersigned recommends that the motion to strike be
granted, Mr. Harris's report be stricken, and any
testimony of Mr. Harris be excluded.
REQUESTS FOR JUDICIAL NOTICE
requests that the Court take judicial notice of, inter
alia, the factual allegations made in each paragraph of
his original complaint filed in the Fresno County Superior
Court and the factual allegations contained in the Third
Amended Complaint. (ECF No. 140 at 2, 4). Defendants object,
arguing that Plaintiff can support his opposition by simply
citing to depositions, documents, affidavits, declarations,
or discovery responses, but cannot use judicial notice to
establish the veracity of Plaintiff's arguments contained
in his prior filings.
court may judicially notice a fact that is not subject to
reasonable dispute because it: (1) is generally known within
the trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed.R.Evid. 201(b).
Documents that are part of the public record may be
judicially noticed to show, for example, that a judicial
proceeding occurred or that a document was filed in another
court case, but a court may not take judicial notice of
findings of facts from another case. See Wyatt
v. Terhune, 315 F.3d 1108, 1114 & n.5 (9th Cir.
2003), overruled on other grounds by Albino v. Baca,
747 F.3d 1162 (9th Cir. 2014) (en banc); Lee v. City of
Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Nor may
the Court take judicial notice of any matter that is in
dispute. Lee, 250 F.3d at 689-90; Lozano v.
Ashcroft, 258 F.3d 1160, 1165 (10th Cir. 2001).
“a court can only take judicial notice of the
existence of those matters of public record (the
existence of a motion or of representations having been made
therein), but not of the veracity of the arguments
and disputed facts contained therein, ” the Court
should deny Plaintiff's request for judicial
notice. United States v. S. Cal. Edison
Co., 300 F.Supp.2d 964, 974 (E.D. Cal. 2004).
also requests that the Court take judicial notice of Darrell
Harris's declaration and opinions included in his
September 27, 2013 report. (ECF No. 141). As discussed in
section III, supra, the undersigned recommends that
Mr. Harris's report be stricken because Mr. Harris does
not qualify as an expert in the appropriate field. Further,
Plaintiff has not established that Mr. Harris's
declaration and opinions are “not subject to reasonable
dispute.” Fed.R.Evid. 201(b). Accordingly,
Plaintiff's request for judicial notice should be denied.
MOTION FOR SUMMARY JUDGMENT
move for summary judgment on the entirety of Plaintiff's
remaining claims. Defendants argue that Plaintiff failed to
exhaust his administrative remedies on some claims in
addition to failing to establish necessary elements of his
Eighth Amendment deliberate indifference and Bane Act claims.
judgment is appropriate when it is demonstrated 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); 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 fact-finder 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 [fact-finder] 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 immaterial.”
Celotex, 477 U.S. at 322. “[C]onclusory
allegations unsupported by factual data” are not enough
to rebut a summary judgment motion. Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989) (citing Angel v.
Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th
reviewing a summary judgment motion, the Court may consider
other materials in the record not cited to by the parties,
but is not required to do so. Fed.R.Civ.P. 56(c)(3);
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d
1026, 1031 (9th Cir. 2001). In judging the evidence at the
summary judgment stage, the Court “must draw all
reasonable inferences in the light most favorable to the
nonmoving party.” Comite de Jornaleros de Redondo
Beach v. City of Redondo Beach, 657 F.3d 936, 942 (9th
Cir. 2011). It need only draw inferences, however, where
there is “evidence in the record . . . from which a
reasonable inference . . . may be drawn”; the court
need not entertain inferences that are unsupported by fact.
Celotex, 477 U.S. at 330 n.2 (quoting In re
Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238,
258 (3d Cir. 1983)).
Eighth Amendment Medical Care
maintain an Eighth Amendment claim based on prison medical
treatment, an inmate must show ‘deliberate indifference
to serious medical needs.'” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The
two-part test for deliberate indifference requires the
plaintiff to show (1) “‘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,
'” and (2) “the defendant's response to
the need was deliberately indifferent.” Jett,
439 F.3d at 1096 (quoting McGuckin v. Smith, 974
F.2d 1050, 1059 (9th Cir. 1992), overruled on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,
1136 (9th Cir. 1997) (en banc) (internal quotations
omitted)). Deliberate indifference can be established
“by showing (a) a purposeful act or failure to respond
to a prisoner's pain or possible medical need and (b)
harm caused by the indifference.” Jett, 439
F.3d at 1096 (citing McGuckin, 974 F.2d at 1060).
Deliberate indifference may be manifested “when prison
officials deny, delay or intentionally interfere with medical
treatment, or it may be shown by the way in which prison
physicians provide medical care.” Jett, 439
F.3d at 1096 (quoting McGuckin, 974 F.2d at 1059).
Where a prisoner is alleging a delay in receiving medical
treatment, the delay must have led to further harm in order
for the prisoner to make a claim of deliberate indifference
to serious medical needs. McGuckin, 974 F.2d at 1060
(citing Shapely v. Nevada Bd. of State Prison
Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).
indifference is a high legal standard.” Toguchi v.
Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “A
showing of medical malpractice or negligence is insufficient
to establish a constitutional deprivation under the Eighth
Amendment.” Id. “[E]ven gross negligence
is insufficient to establish a constitutional
violation.” Id. (citing Wood v.
Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990))
difference of opinion between a prisoner-patient and prison
medical authorities regarding treatment does not give rise to
a § 1983 claim.” Franklin v. Oregon, 662
F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted).
To prevail, Plaintiff “must show that the course of
treatment the doctors chose was medically unacceptable under
the circumstances . . . and . . . that they chose this course
in conscious disregard of an excessive risk to
plaintiff's health.” Jackson v. McIntosh,
90 F.3d 330, 332 (9th Cir. 1996) (internal citations
Bane Act, Civil Code ...