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Benanti v. Matevousian

United States District Court, E.D. California

December 17, 2019

MICHAEL BENANTI, Plaintiff,
v.
MATEVOUSIAN, Defendants.

          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]

         Plaintiff 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.

         Currently before the Court is Defendants' motion for summary judgment, filed August 26, 2019.

         I. RELEVANT BACKGROUND

         This 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 Amendment.[1]

         On June 5, 2018, Defendants filed a motion for summary judgment for failure to exhaust the administrative remedies.

         On 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.

         On October 11, 2018, Defendants filed an answer to the complaint.

         On October 16, 2018, the Court issued the discovery and scheduling order.

         As previously stated, on August 26, 2019, Defendants filed a motion for summary judgment addressing the merits of Plaintiff's claims.

         Plaintiff filed an opposition on December 2, 2019, and Defendants filed a reply on December 9, 2019.

         II. LEGAL STANDARD

         Any 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 Cir. 2010).

         In 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).

         Local 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 denial.”

         Normally, 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 Rosenfeld,

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.

         Here, 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.

         III. DISCUSSION

         A. Summary of Plaintiff's Complaint

         Plaintiff 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 Prisons.

         In 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.

         On 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.

         In the 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.

         A day 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 ...


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