United States District Court, E.D. California
a state prisoner proceeding pro se, has filed this civil
rights action seeking relief under 42 U.S.C. § 1983. The
matter was referred to a United States Magistrate Judge as
provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
8, 2019, the magistrate judge filed findings and
recommendations, which were served on all parties and which
contained notice to all parties that any objections to the
findings and recommendations were to be filed within fourteen
days. Neither party has filed objections to the findings and
court presumes that any findings of fact are correct. See
Orand v. United States, 602 F.2d 207, 208 (9th Cir.
1979). The magistrate judge's conclusions of law are
reviewed de novo. See Robbins v. Carey, 481 F.3d
1143, 1147 (9th Cir. 2007) (“[D]eterminations of law by
the magistrate judge are reviewed de novo by both the
district court and [the appellate] court . . . .”).
Having reviewed the file, except as discussed below, the
court finds the findings and recommendations to be supported
by the record and by the proper analysis.
magistrate judge finds that both plaintiff's
administrative Appeal No. MCSP HC 15047179 and Appeal No.
MCSP HC 15047222 “sought the rescheduling of
plaintiff's surgery” and that “[p]laintiff
sought an emergency rescheduling of plaintiff's surgery,
but also sought information concerning treatment of his other
health issues, such as his hernia, suggesting plaintiff was
seeking additional information in order to make an informed
decision whether to consent to such a radical surgery.”
ECF No. 56 at 17-18. The magistrate judge also finds neither
appeal “specifically challenged a delay in
surgery.” Id. at 18. After review of the two
administrative appeals, the court declines to adopt these
findings as it does not agree with the magistrate judge's
interpretation. The magistrate judge notes he
“considered whether the court should liberally construe
such appeals as at least challenging the delay from August 8,
2015 until October 22, 2015, when plaintiff finally received
the surgery, ” ECF No. 56, and concluded the court
should not. However, after review, this court finds the
liberal construction discussed by the magistrate judge
appropriate and, indeed, fully supported by the assertions in
the two administrative appeals.
Appeal No. MCSP HC 15047179, plaintiff wrote that on August
8, 2015, at a clinic he
was notified by the nurse that I was going out for procedure.
I asked if this would be a pre-surgery counseltation [sic] or
right into surgery? She said the doctor would talk to me (not
answering my question). I asked, besides just resectioning
the 2 cm of cancer were they also going to repair the
underlying cause, hiatal hernia, lower esophageal sphincter
and remove the Barrett's? When I said I needed these
questions addressed, the nurse immediately asked if I was
refusing the surgery. I said, No, I am absolutely not
refusing the surgery. That simply I need this surgery to save
my life but want these questions answered to know what is
On August 11, 2015 I was seen by Dr. Jackson who asked why I
had “refused” this surgery on Monday. When I
explained what took place, and that I was not even aware of
the transport on Monday, he did not seem to have any answers
38-4 at 28, 30.
Appeal No. MCSP HC 15047222, plaintiff claimed that on
Monday, August 10, 2015, his cancer surgery “was
erroneously cancelled” because staff said he had
refused the surgery. ECF No. 38-4 at 35. He cross-referenced
Appeal No. MCSP HC 15047179 for additional details.
Id. He then claimed he had been sent to the wrong
hospital on August 20, 2015 and was again returned to Mule
Creek without undergoing the surgery. Id. at 37.
Plaintiff asserted the surgery was “urgent” and
requested it be rescheduled.
court finds both administrative appeals challenge the delays
in scheduling plaintiffs surgery. The court further finds the
questions raised by plaintiff, described in Appeal No. MCSP
HC 15047222, were raised by plaintiff to understand the full
scope of the procedures and treatment he would be receiving
and not to decide whether to consent to the cancer surgery.
However, the court adopts the magistrate judge's findings
that plaintiff did not pursue either of these administrative
appeals beyond the first level of review. See ECF
No. 56 at 14-15. For this reason, these two administrative
appeals did not exhaust plaintiffs claims concerning the
delay in surgery.
IT IS HEREBY ORDERED that:
Except as modified by this order, the findings and
recommendations filed July 8, 2019, are adopted in full;
Defendants' motion for summary judgment (ECF No. 38) is
granted in part and denied in part, as follows:
a. Defendants' motion is denied as to plaintiffs claims
that Dr. Smith and Dr. Horowitz failed to timely diagnose
plaintiffs cancer and improperly ...