(PC) Barth v. Romero

• Court: District Court, E.D. California
• Decided: March 7, 2024
• Docket: 2:19-cv-00891
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAWN DAMON BARTH, No. 2:19-CV-0891-DJC-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 S. MEY, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendant’s motion for summary judgment, ECF 19 No. 65. Plaintiff filed an opposition to Defendant’s motion for summary judgment, ECF No. 69. 20 Defendant filed a reply to Plaintiff’s opposition, ECF No. 70. 21 The Federal Rules of Civil Procedure provide for summary judgment or summary 22 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 23 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 24 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 25 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 26 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 27 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. 28 / / / 1 See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 2 moving party

3 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 4 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 5 genuine issue of material fact.

6 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 7 8 If the moving party meets its initial responsibility, the burden then shifts to the 9 opposing party to establish that a genuine issue as to any material fact actually does exist. See 10 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 11 establish the existence of this factual dispute, the opposing party may not rely upon the 12 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 13 form of affidavits, and/or admissible discovery material, in support of its contention that the 14 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 15 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 16 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 17 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 18 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 19 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 20 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 21 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 22 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 23 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 24 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 25 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 26 / / / 27 / / / 28 / / / 1 In resolving the summary judgment motion, the court examines the pleadings, 2 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 3 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 4 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 5 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 6 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 7 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 8 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 9 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 10 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 11 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 12 imposed.” Anderson, 477 U.S. at 251. 13 14 I. PLAINTIFF’S ALLEGATIONS 15 After the screening phase, Plaintiff’s only remaining claim is against Defendant 16 Mey for an Eighth Amendment medical care claim based on the denial of a breathing treatment, 17 as alleged in the second amended complaint. ECF No. 36. 18 Plaintiff claims to suffer from asthma, C.O.P.D., rheumatoid arthritis, degenerative 19 disk disease, and food allergies. See ECF No. 19, pgs. 4-5. Plaintiff also has a metal rod in his 20 right leg extending from the knee to the ankle. See id. at 5. Plaintiff was moved to Mule Creek 21 State Prison (MCSP) in September 2018. Id. at 12. Plaintiff’s only valid claim stems from the 22 allegation that on October 11, 2018, Defendant “denied Plaintiff a breathing treatment while 23 Plaintiff was having an asthma attack.” Id. at 13. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE PARTIES’ EVIDENCE 2 Defendant’s motion for summary judgment is supported by points and authorities, 3 ECF No. 65-2, a separate statement of undisputed facts, ECF No. 65-3, the declaration of defense 4 counsel Anne M. Kammer, Esq., with attached Exhibits 1 through 3, ECF No. 65-4, and the 5 declaration of D. Santos, a Correctional Counselor at MCSP, with attached Exhibits A through C, 6 ECF No. 65-5. Defendant attaches exhibits to both declarations, including a transcript of 7 Plaintiff’s deposition, ECF No. 65-4 at 3-147. 8 Concerning Plaintiff’s medical condition, Defendant asserts that the following 9 facts are not in dispute:

10 1. Plaintiff Shawn Damon Barth is a California inmate and, at all times relevant to this action, was housed in Facility B, Building 9, at 11 Mule Creek State Prison (MCSP). Plaintiff’s Verified Amended Complaint (Doc. No. 19) at 1; Kammer Decl., Ex. 1 (Plaintiff’s Deposition 12 Transcript (Pl. Depo.)) at pg. 17, ll. 21-25.

13 2. Barth suffers from several medical conditions, including chronic obstructive pulmonary disorder (COPD) and emphysema. Pl. 14 Depo. at pg. 21, ll. 1-7; Kammer Decl., Ex. 2 (Plaintiff’s Medical Records (Pl. MR) at AGMSJ_0001 to AGMSJ_0002. 15 3. At all relevant times to this action, Barth was prescribed 16 medications to treat COPD and emphysema. Pl. MR at AGMSJ_0003 to AGMSJ_0008. 17 4. Barth was also prescribed rescue inhalers, including 18 Xopenex and Atrovent, to be kept on his person and used as needed for immediate relief from shortness of breath or wheezing. 19 Pl. MR at AGMSJ_0004, AGMSJ_0008; Pl. Depo. at pg. 23, ll. 20-23, pg. 24, ll. 5-7. 20 ECF No. 65-3, pg. 2. 21 22 Next, as to shortness of breach and treatment Plaintiff received in October 2018, 23 Defendant asserts the following facts are undisputed:

24 5. On October 6, 2018, a licensed vocational nurse (LVN) responded at 1839 hours to Barth’s request for emergent medical attention. 25 Pl. MR at AGMSJ_0009.

26 6. Barth complained to the LVN of shortness of breath. Pl. MR at AGMSJ_0009. 27

28 / / / 1 7. The LVN measured Barth’s vital statistics, notified the Treatment and Triage Area (TTA), and Barth was transported via 2 wheelchair to the TTA for further examination. Pl. MR at AGMSJ_0009 to AGMSJ-0010. 3 8. Barth was examined in the TTA by a registered nurse (RN), 4 who administered a dose of DuoNeb to Barth to alleviate his shortness of breath. Pl. MR at AGMSJ_0013. 5 9. The RN also consulted with the on-call physician, Dr. 6 Ashe, and reported that Barth’s shortness of breath had resolved after the DuoNeb treatment. Pl. MR at AGMSJ_0011. 7 10. Dr. Ashe prescribed a 5-day course of DuoNeb treatments 8 for Barth, to be taken four times a day as needed. Pl. MR at AGMSJ_0011 to AGMSJ_0012. 9 11. Barth received additional DuoNeb treatments on October 8, 10 2018, at 0830 hours and 2020 hours. Pl. MR at AGMSJ_0014 to AGMSJ_0015. 11 12. Barth had a follow-up appointment with Dr. Ashe on 12 October 10, 2018. Pl. MR at AGMSJ_0016.

13 13. Dr. Ashe noted Barth had received DuoNeb treatments that had resolved his shortness of breath. Pl. MR at AGMSJ_0016. 14 14. Dr. Ashe also noted that Barth reported using his Xopenex 15 rescue inhaler. Pl. MR at AGMSJ_0016.

16 15. There is no institutional or medical record of Barth requesting medical attention for an urgent or emergent health care need on 17 Thursday, October 11, 2018. Santos Decl. ¶ 6; Kammer Decl. ¶ 4.

18 ECF No. 65-3, pgs. 2-3. 19 Finally, Defendant offers that the following facts are undisputed regarding 20 Defendant Mey’s work schedule in October 2018:

21 16. Officer Mey was employed by CDCR at MCSP as a correctional officer at all times relevant to this action. Doc. No. 19 at 6; 22 Santos Decl. ¶ 3, Ex. A.

23 17. In October 2018, Officer Mey’s assigned post was Building 9, located in Facility B, Floor 2, Third Watch (1400 hours to 2200 hours), 24 and his regular days off were Wednesdays and Thursdays. Santos Decl. ¶ 4, Ex. B; Ex. A. 25 18. Officer Mey did not work on October 11, 2018, as it was 26 one of his regular days off. Santos Decl. ¶ 4, Ex. B; ¶ 5, Ex. C.

27 / / /

28 / / / 1 19. Officer Mey did work on October 8, 2018, and on that date, he issued a Rules Violation Report to Barth for disobeying an order to 2 report directly to the medical clinic for his breathing treatment. Kammer Decl. ¶ 5, Ex. 3; Santos Decl., Ex. B. 3 20. Officer Mey did not prevent Barth from receiving breathing 4 treatments on any date, at any time. Pl. MR at AGMSJ_0014 to AGMSJ_0015. 5 ECF No. 65-3, pg. 4. 6 7 In opposition, Plaintiff submits a brief, ECF No. 69, as well as his own 8 declaration, ECF No. 69-1. Plaintiff does not submit a separate statement of disputed facts, nor 9 does he directly respond to the list of purported undisputed facts submitted by Defendant. 10 Attached to Plaintiff’s declaration are two documents. The first is a CDCR Form 602 inmate 11 grievance dated October 11, 2018. See ECF No. 69-1, p. 2. In this grievance, Plaintiff claims 12 that Defendant Mey and other correctional officers denied him breathing treatment on October 13 11, 2018. See id. The second document is a CDCR assessment form documenting Plaintiff’s 14 vital signs as noted at a clinic visit on October 6, 2018. See id. at 3. 15 16 III. DISCUSSION 17 In his motion for summary judgment, Defendant argues Plaintiff cannot establish 18 deliberate indifference as to his Eighth Amendment medical claim. See ECF No. 65-2, pgs. 5-9. 19 According to Defendant, he is entitled to summary judgment because the undisputed evidence 20 shows that he did not work on October 11, 2018—the date of the incident—and could therefore 21 not have interfered with Plaintiff’s receipt of medical treatment. 22 The treatment a prisoner receives in prison and the conditions under which the 23 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 24 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 25 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 26 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 27 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 28 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 1 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 2 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 3 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 4 that it results in the denial of the minimal civilized measure of life’s necessities; and (2) 5 subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 6 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 7 official must have a “sufficiently culpable mind.” See id. 8 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 9 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 10 see also Farmer, 511 U.S. at 837. This applies to physical as well as dental and mental health 11 needs. See Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982), abrogated on other grounds by 12 Sandin v. Conner, 515 U.S. 472 (1995). An injury or illness is sufficiently serious if the failure to 13 treat a prisoner’s condition could result in further significant injury or the “. . . unnecessary and 14 wanton infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled 15 on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc); see 16 also Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness 17 are: (1) whether a reasonable doctor would think that the condition is worthy of comment; (2) 18 whether the condition significantly impacts the prisoner’s daily activities; and (3) whether the 19 condition is chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 20 1131-32 (9th Cir. 2000) (en banc). 21 The requirement of deliberate indifference is less stringent in medical needs cases 22 than in other Eighth Amendment contexts because the responsibility to provide inmates with 23 medical care does not generally conflict with competing penological concerns. See McGuckin, 24 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 25 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 26 1989). The complete denial of medical attention may constitute deliberate indifference. See 27 Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986). Delay in providing medical 28 treatment, or interference with medical treatment, may also constitute deliberate indifference. See 1 Lopez, 203 F.3d at 1131. Where delay is alleged, however, the prisoner must also demonstrate 2 that the delay led to further injury. See McGuckin, 974 F.2d at 1060. 3 Negligence in diagnosing or treating a medical condition does not, however, give 4 rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a 5 difference of opinion between the prisoner and medical providers concerning the appropriate 6 course of treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 7 90 F.3d 330, 332 (9th Cir. 1996). 8 Additionally, to prevail on a claim under 42 U.S.C. § 1983, the plaintiff must 9 establish an actual connection or link between the actions of the named defendants and the 10 alleged deprivations. See Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 11 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, 12 within the meaning of § 1983, if he does an affirmative act, participates in another's affirmative 13 acts, or omits to perform an act which he is legally required to do that causes the deprivation of 14 which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Defendant argues:

16 . . . The undisputed evidence demonstrates Officer Mey did not work on Thursday, October 11, 2018, as it was one of his regular days off. 17 (DUF No. 18.) Consequently, Barth will be unable to prove Officer Mey’s personal involvement in the purported deprivation of a breathing treatment 18 on that date. See Green v. Thompson, No. C 10-5721 WHA PR, 2013 WL 550621, 2013 U.S. Dist. LEXIS 18854, at *4-5 (N.D. Cal. Feb. 12, 2013) 19 (“The accuracy of the time sheets showing [defendant]’s absence on June 9, consistent with his regular work schedule, is not called into question by 20 any evidence submitted by plaintiff or otherwise in the record. As a result, a fact-finder would not have any reasonable basis to find them, as opposed 21 to Plaintiff’s memory, inaccurate.”); Smith v. Hernandez, No. 1:16-cv- 01267-DAD-SAB (PC), 2018 U.S. Dist. LEXIS 216950, at *5 (E.D. Cal. 22 Dec. 26, 2018) (granting summary judgment because “[t]he undisputed facts shown that Defendant Zuniga in fact did not work at CCI on March 23 1, 2016. It was his regular day off.”).

24 ECF No. 65-2, pgs. 6-7. 25 Defendant’s argument is persuasive. It is undisputed that Defendant’s work 26 schedule shows that he was not scheduled to work on October 11, 2018. Additionally, the sign-in 27 sheet for October 11, 2018, does not include Defendant Mey’s signatures, indicating he did not 28 work on that day. Defendant has met his initial burden of showing there is no genuine dispute of 1 material fact as to whether he worked on October 11, 2018, and that, because he was not working 2 that day, he is entitled to summary judgment in his favor. See Green, 2013 WL 550621 at *4-5; 3 Smith, 2018 U.S. Dist. LEXIS 216950 at *5. 4 In his opposition to the motion for summary judgment, Plaintiff disputes the 5 allegation that Defendant Mey did not work on October 11, 2018, “or closely around this date 6 which medical records can ascertain.” ECF No. 65 at 8. Plaintiff speculates that “[i]t is possible 7 that Plaintiff asserted the wrong date of Oct. 11, 2018, instead of October 6, 2018” in his 8 complaint, and therefore there is a genuine dispute of material fact as to which date Defendant 9 was working. Id. at 10. 10 The Court finds that Plaintiff’s opposition and supporting declaration with 11 documents attached fail to indicate the existence of a genuine dispute of material fact, either as to 12 whether Officer Mey worked on October 11, 2018, or whether Plaintiff received adequate 13 medical treatment on October 6, 2018. Plaintiff may not amend his complaint now to avoid 14 summary judgment. See M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 15 1492 (9th Cir. 1983); see also Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 958, 969 (9th Cir. 16 2006) (refusing to consider new allegations raised for the first time in opposition to motion for 17 summary judgment). 18 Even if the Court were to construe Plaintiff’s opposition as a motion for leave to 19 amend and consider the second amended complaint amended to allege that Defendant Mey 20 worked on October 6, 2018, instead of October 11, 2018, Plaintiff still fails to raise a genuine 21 dispute of material fact. The undisputed facts show Plaintiff was seen in the medical clinic on 22 October 6, 2018, incident to Plaintiff’s request for emergent medical attention. At this visit, 23 Plaintiff complained to the nurse of shortness of breath. Plaintiff’s vitals were measured and 24 Plaintiff was transported by wheelchair to the treatment and triage area for further examination. 25 At the treatment and triage area, Plaintiff was examined by another nurse who administered a 26 dose of DuoNeb to alleviate Plaintiff’s shortness of breath. The nurse also reported Plaintiff’s 27 condition to the on-call physician, noting that Plaintiff’s shortness of breath had resolved with the 28 DuoNeb medication. The on-call physician then prescribed Plaintiff a 5-day course of DuoNeb 1 | treatments to be taken four times a day as needed. On October 8, 2018, Plaintiff received 2 || additional DuoNeb treatments. Plaintiff then had a follow-up appointment with the on-call 3 || physician on October 10, 2018, and the doctor noted that the prescribed DuoNeb treatments had 4 || resolved Plaintiffs breathing issues. 5 These facts, which are not disputed by Plaintiff, show that Plaintiff received 6 || adequate medical treatment on October 6, 2018, regardless of who provided it. At best Plaintiffs 7 || claim amounts to a difference of medical opinion with respect to his treatment on October 6, 8 | 2018. 9 Because Defendant Mey was not working on October 11, 2018 — the date alleged 10 || in the complaint — and because the undisputed evidence shows that Plaintiff received adequate 11 || medical treatment on October 6, 2018 — the alternate date Plaintiff suggests in his opposition — 12 | Plaintiff cannot prevail on an Eighth Amendment medical deliberate indifference claim arising 13 || from either date and, therefore, Defendant is entitled to judgment in his favor as a matter of law. 14 15 IV. CONCLUSION 16 Based on the foregoing, the undersigned recommends that Defendant’s motion for 17 || summary judgment, ECF No. 65, be GRANTED. 18 These findings and recommendations are submitted to the United States District 19 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 20 | after being served with these findings and recommendations, any party may file written 21 || objections with the court. Responses to objections shall be filed within 14 days after service of 22 || objections. Failure to file objections within the specified time may waive the right to appeal. See 23 || Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: March 7, 2024 Co 2 DENNIS M. COTA 26 UNITED STATES MAGISTRATE JUDGE 27 28 10