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Miller v. Adonis

United States District Court, E.D. California

August 28, 2019

M. ADONIS, et al., Defendants.


         Plaintiff 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.

         For the reasons stated herein, the undersigned recommends granting Defendants' motion to strike and motion for summary judgment, and denying Plaintiff's requests for judicial notice.


         This 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.

         On 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).

         On 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).


         Plaintiff's 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 hypertrophic changes.

         On June 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.

         Plaintiff 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, 2010.

         On 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 arrival.

         On 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.

         Plaintiff 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 medical needs.

         Plaintiff 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 six weeks.

         Plaintiff 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.

         On 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.

         On 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 result.


         Defendants 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).

         A. Legal Standard

         “Pursuant 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 methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         The 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).

         B. Qualifications

         Plaintiff's 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 profession.

         Mr. 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).

         Mr. 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).

         Mr. 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 in 1986.

         C. Analysis of Mr. Harris' Relevant Expertise

         The 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.

         Based 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 witness's expertise).

         Accordingly, the undersigned recommends that the motion to strike be granted, Mr. Harris's report be stricken, and any testimony of Mr. Harris be excluded.


         Plaintiff 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.

         “The 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).

         Because “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.[2] United States v. S. Cal. Edison Co., 300 F.Supp.2d 964, 974 (E.D. Cal. 2004).

         Plaintiff 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.


         Defendants 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.

         A. Legal Standards

         1. Summary Judgment

         Summary 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. 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 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 Cir. 1981)).

         In 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)).

         2. Eighth Amendment Medical Care

         “[T]o 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)).

         “Deliberate 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))

         “A 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 omitted).

         3. Bane Act

         California's Bane Act, Civil Code ...

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