United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO CORRECT SPELLING OF
DEFENDANTS ALATARY AND CASTANADA'S NAMES FINDINGS AND
RECOMMENDATION REGARDING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT [ECF NO. 68]
Michael Benanti is appearing pro se and in forma pauperis in
this civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
This matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
before the Court is Defendants' motion for summary
judgment, filed August 26, 2019.
action is proceeding against Defendants D. Alatary, C.
Castenada and Dr. Thomas Moore for deliberate indifference to
a serious medical need in violation of the Eighth
5, 2018, Defendants filed a motion for summary judgment for
failure to exhaust the administrative remedies.
August 23, 2018, the undersigned issued Findings and
Recommendations to deny Defendants' motion for summary
judgment, which was adopted in full on September 28, 2018.
October 11, 2018, Defendants filed an answer to the
October 16, 2018, the Court issued the discovery and
previously stated, on August 26, 2019, Defendants filed a
motion for summary judgment addressing the merits of
filed an opposition on December 2, 2019, and Defendants filed
a reply on December 9, 2019.
party may move for summary judgment, and the Court shall
grant summary judgment if the movant shows 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)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it 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); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun, 509 F.3d at 984 (quotation
marks and citation omitted), and it must draw all inferences
in the light most favorable to the nonmoving party and
determine whether a genuine issue of material fact precludes
entry of judgment, Comite de Jornaleros de Redondo Beach
v. City of Redondo Beach, 657 F.3d at 942 (quotation
marks and citation omitted).
Rule 260(b) requires that “any party opposing a motion
for summary judgment … reproduce the itemized facts in
the Statement of Undisputed Facts and admit those facts that
are undisputed and deny those that are disputed, including
with each denial a citation to the particular portions of any
pleading, affidavit, deposition, interrogatory answer,
admission, or other document relied on in support of that
documents not signed under penalty of perjury cannot be
considered on summary judgment. See Jones v. Blanas,
393 F.3d 918, 923 (9th Cir. 2004) (examining verified
pleadings and motions in opposition to summary judgment).
However, “the Ninth Circuit appears to require district
courts to consider some unsworn, inadmissible material in the
summary judgment analysis.” Rosenfeld v.
Mastin, No. CV 11-7002-DOC(E), 2013 WL 5705638, at *4
(C.D. Cal. Sept. 11, 2013) (citing Fraser v.
Goodale, 342 F.3d 1032 (9th Cir. 2003)). As stated in
Under Fraser v. Goodale and its progeny, this Court
should consider the unsworn statements made by Plaintiff in
the Third Amended Complaint and in the Opposition concerning
the force allegedly used on him at the time of his arrest.
Plaintiff plainly has personal knowledge of the content of
these statements and could present the statements in
admissible form through his own testimony at trial. To refuse
consideration of these statements would elevate form over
substance, in disregard of the legally indistinguishable
holding of Fraser v. Goodale.
Rosenfeld v. Mastin, 2013 WL 5705638, at *5.
the Court notes that neither the first amended complaint or
opposition were signed under penalty of perjury. (ECF Nos.
14, 81.) Plaintiff did attach a proof of service to the first
amended complaint which is signed under penalty of perjury.
Given Plaintiff's pro se status and the fact that the
proof of service is attached and signed under penalty of
perjury the Court will consider it verified for purposes of
ruling on this motion. In addition, with regard to
Plaintiff's opposition, he presented his own statement of
disputed facts (ECF No. 81) to identify facts in dispute, but
he does not say why he disputes them or cite to portions of
the record that support a different interpretation of the
facts. To the extent Plaintiff has personal knowledge of the
information set forth in his opposition, wherever a fact is
brought into dispute by facts presented in these filings, the
facts will be considered here insofar as they otherwise are
competent and material.
Summary of Plaintiff's Complaint
suffers from acid reflux stemming from the treatment of
Thrombocytopenia, and both conditions are documented in
Plaintiff's presentence report. Plaintiff has been
treated with prescription Omeprazole for over seven years and
at several institutions within the United States Bureau of
August 2017, upon Plaintiff's arrival at the United
States Petitionary in Atwater, Dr. Thomas Moore advised
Plaintiff that he would not be provided Omeprazole for acid
reflux, but he could purchase Prilosec at the commissary as
an over the counter medication.
October 6, 2017, the entire prison was locked down due to a
riot and normal operations did not resume until January 2,
2018. Plaintiff immediately began to complain about acid
reflux and his inability to purchase Prilosec from the
commissary due to the lockdown. During the early stages of
the lockdown, Plaintiff spoke to D. Alatary from health
services and he requested a prescription for Omeprazole and
to see a doctor. Plaintiff explained that he had not been
able to purchase any over the counter medication from
commissary and he was having increasing pain and discomfort
on a daily basis. Defendant Alatary told Plaintiff that he
would not authorize a prescription for over the counter
medications because it was not his problem and he should
contact the trust fund who manages the commissary to buy it.
middle of October 2017, Plaintiff spoke to the Unit Two Care
Manager, Castaneda and explained his medical condition and
lack of medication. Plaintiff complained of severe and
constant burning in his stomach and throat with bile erupting
into his mouth periodically. Plaintiff also indicated that he
was experiencing increasing symptoms of tightening and
closure of his throat and the development of a violent cough.
The pain caused headaches, lack of rest and constant
discomfort. Mr. Castaneda returned to Plaintiff's cell a
day or so later and indicated he had spoken with the trust
fund administrator and Warden who stated, Plaintiff would not
be allowed to make a special purchase of Prilosec, there was
no schedule for the inmate population to go to commissary,
and even if permitted to go the commissary the list would not
include Prilosec or any acid pump inhibitor. Plaintiff
contends Mr. Castaneda's inaction allowed the improper
denial of medical treatment.
or so later, Plaintiff report chest pains to officer Prewitt.
Both Mr. Alatary and Mr. Castaneda responded to
Plaintiff's cell and denied medical treatment. Plaintiff
indicates that after he filed the instant action in October