(PC) Kindred v. Dike

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD SCOTT KINDRED, Case No. 1:19-cv-00955-AWI-JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANT’S MOTION FOR 13 v. SUMMARY JUDGMENT

14 ANTHONY DIKE, (Doc. 49)

15 Defendant. 16 17 Richard Scott Kindred, a civil detainee at the Department of State Hospitals-Coalinga 18 (“Coalinga State Hospital”), alleges Dr. Anthony Dike provided him inadequate medical care in 19 violation of the Fourteenth Amendment. (Doc. 1.) Defendant moves for summary judgment 20 pursuant to Federal Rule of Civil Procedure 56. (Doc. 49.) Defendant argues that summary 21 judgment is proper because there is no evidence that shows that he breached any standard of care 22 when treating Plaintiff or that his acts or omissions caused any injury to Plaintiff. (Id. at 2; Doc. 23 49-1 at 2.) Plaintiff has filed an opposition to Defendant’s motion (Doc. 53), to which Defendant 24 has filed a reply (Doc. 54). For the reasons set forth below, the Court recommends that 25 Defendant’s motion be granted. 26 I. EVIDENTIARY MATTERS 27 The Local Rules provide that a “party opposing a motion for summary judgment . . . shall 1 those [facts] that are disputed, including with each denial a citation to the particular portions of 2 any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied 3 upon in support of that denial.” Local Rule 260(b). Federal Rule of Civil Procedure 56, moreover, 4 provides that “[a] party asserting that a fact . . . is genuinely disputed must support the assertion 5 by . . . citing to particular parts of materials in the record. . .” Fed. R. Civ. P. 56(c)(1). 6 In his response to Defendant’s Statement of Undisputed Facts (“SUF”), Plaintiff fails to 7 cite to any materials in the record to support his denials of Defendant’s proffered facts. See 8 generally Pl.’s Resp. to SUF (Doc. 53 at 11-20). More generally, throughout his opposition, 9 Plaintiff fails to support his assertions that facts are genuinely disputed with any evidence.1 See 10 generally Pl.’s Opp’n. (Doc. 53). The Court, therefore, considers Defendant’s proffered facts as 11 undisputed for purposes of the motion for summary judgment. Fed. R. Civ. P. 56(e)(2). 12 II. SUMMARY OF RELEVANT FACTS 13 At the times relevant to this case, Plaintiff was civilly detained at Coalinga State Hospital. 14 See generally Pl.’s Compl. (Doc. 1). Dr. Dike first met Plaintiff in February of 2017 while 15 “covering . . . Unit 18 of” Coalinga State Hospital. SUF ¶ 5. Dr. Dike examined Plaintiff in 16 September of 2017, diagnosing him with “acute gastritis, morbid obesity, and bilateral leg 17 edema.” Id. ¶¶ 8-9. Plaintiff received an ultrasound, which “revealed evidence of a liver mass.” 18 Id. ¶¶ 10-11. In November of 2017, Dr. Dike diagnosed Plaintiff with type II diabetes. Id. ¶¶ 15, 19 17. In April of 2018, Dr. Dike met with Plaintiff to discuss the results of a CT scan, which were 20 “suggestive of ascites, liver cirrhosis and splenic varices.” Id. ¶ 21. 21 In his deposition, Plaintiff testified that he reported vomiting to a nurse on June 18, 2018. 22 Id. ¶ 26. Dr. Dike was not present at Coalinga State Hospital on that date. Id. ¶ 30. Plaintiff 23 further testified that, during the early morning hours of June 19, 2018, he again began vomiting 24 and having diarrhea, and he was taken to the emergency room of the hospital. Id. ¶ 32. According 25 to a nurse’s notes, “the vomitus looked like partially digested meat.” Id. ¶ 41. 26 /// 27 1 Because Plaintiff has not attested under penalty of perjury that the contents of his pleadings and his opposition to 1 Dr. Dike visited Plaintiff during the morning of June 19, 2018; his “initial physical 2 examination was unremarkable.” See id. ¶¶ 33, 43. Dr. Dike concluded that Plaintiff had suffered 3 from gastroenteritis, probably due to a staph infection (i.e., food poisoning). Id. ¶ 44. 4 In the afternoon of June 19, 2018, Plaintiff again began vomiting, “this time with bright 5 red blood in the vomitus.” Id. ¶ 46. “Dr. Dike diagnosed Plaintiff with ‘acute upper GI bleed, 6 acute gastroenteritis and nonalcoholic liver disease.’” Id. at ¶ 47. According to Plaintiff, Dr. Dike 7 ordered that he be transferred to Community Regional Medical Center in Fresno. Id. ¶¶ 34, 48. 8 While at Community Regional Medical Center, Plaintiff received a transfusion of “packed red 9 blood cells.” Id. ¶ 50. He was diagnosed with “bleeding esophageal varices, likely secondary to 10 his previously confirmed liver disease.” Id. ¶ 51. According to Dr. Dike, Plaintiff’s prior food 11 poisoning likely “led to retching and the force lacerated or burst an esophageal variceal.” Id. ¶ 52. 12 Throughout this series of events, Dr. Dike attests that he “used his professional judgment in a 13 manner consistent with the standard of care.” Id. ¶ 54; Dike Decl. ¶ 25 (Doc. 49-3). 14 III. LEGAL STANDARD 15 Summary judgment is appropriate when the moving party “shows that there is no genuine 16 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 17 Civ. P. 56(a). The moving party “initially bears the burden of proving the absence of a genuine 18 issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing 19 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by 20 “citing to particular parts of materials in the record, including depositions, documents, 21 electronically stored information, affidavits or declarations, stipulations . . . , admissions, 22 interrogatory answers, or other materials,” or by showing that such materials “do not establish the 23 absence or presence of a genuine dispute, or that an adverse party cannot produce admissible 24 evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears 25 the burden of proof at trial, “the moving party need only prove that there is an absence of 26 evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 27 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 1 Summary judgment should be entered against a party who fails to make a showing 2 sufficient to establish the existence of an element essential to that party’s case, and on which that 3 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of 4 proof concerning an essential element of the nonmoving party’s case necessarily renders all other 5 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, 6 “so long as whatever is before the district court demonstrates that the standard for the entry of 7 summary judgment . . . is satisfied.” Id. at 323. 8 If the moving party meets its initial responsibility, the burden then shifts to the opposing 9 party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec. 10 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the 11 existence of a factual dispute, the opposing party may not rely upon the allegations or denials of 12 his pleadings but is required to tender evidence of specific facts in the form of affidavits or 13 admissible discovery material in support of its contention. See Fed. R. Civ. P. 56(c)(1); 14 Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 15 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary 16 judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., that 17 it might affect the outcome of the suit under governing law, see Anderson v. Liberty Lobby, Inc., 18 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 19 630 (9th Cir. 1987), and that the dispute is genuine, i.e., that the evidence is such that a 20 reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250; 21 Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 22 In attempting to show a factual dispute, the opposing party need not prove a material fact 23 conclusively in her favor. It is sufficient that “the claimed factual dispute be shown to require a 24 jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 25 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the 26 proof in order to see whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 27 (citations omitted). 1 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 2 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. 3 Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). However, the opposing 4 party must still produce a factual predicate from which the inference may be drawn. See Richards 5 v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 6 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than 7 simply show that there is some metaphysical doubt as to the material facts. . . . Where the record 8 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 9 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 10 IV. DISCUSSION 11 Plaintiff’s sole operative claim is a due process claim for inadequate medical care against 12 Dr. Dike. (See Docs. 6, 8, 30.) To determine whether the medical care and other conditions of 13 confinement of civilly committed persons are constitutionally adequate, courts look to the 14 substantive due process component of the Fourteenth Amendment. See Youngberg v. Romeo, 457 15 U.S. 307, 314-319 (1982); Jones v. Blanas, 393 F.3d 918, 931 (9th Cir. 2004). “Involuntarily 16 committed patients in state mental health hospitals have a . . . due process right to be provided 17 safe conditions by the hospital administrators. . . . [W]hether a hospital administrator has violated 18 a patient’s constitutional rights is determined by whether the administrator’s conduct diverges 19 from that of a reasonable professional.” Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 20 2016) (internal quotation marks and citation omitted). “[A] decision, ‘if made by a professional,2 21 is presumptively valid; liability may be imposed only when the decision by the professional is 22 such a substantial departure from accepted professional judgment, practice, or standards as to 23 demonstrate that the person responsible actually did not base the decision on such a judgment.’” 24 Id. (quoting Youngberg, 457 U.S. 307 at 323). 25 “The Youngberg [professional judgment] standard differs from the ‘deliberate 26

27 2 The Supreme Court defined a “professional’ decisionmaker” as “a person competent, whether by education, training or experience, to make the particular decision at issue. Long-term treatment decisions normally should be made by 1 indifference’ standard used in Eighth Amendment cruel and unusual punishment cases. . .’” 2 Mitchell, 818 F.3d at 443 (citation omitted). The Youngberg standard is an objective standard, and 3 it equates “to that required in ordinary tort cases for a finding of conscious indifference 4 amounting to gross negligence.” Ammons v. Washington Dep’t of Soc. & Health Servs., 648 F.3d 5 1020, 1029 (9th Cir. 2011) (internal quotation marks and citations omitted). 6 “Conscious indifference,” though less severe than “deliberate indifference,” is “more 7 stringent than that required for a finding of negligence, which may be demonstrated by a 8 professional’s mere failure to exercise the level of care expected of other professionals in the 9 same field.” Estate of Conners by Meredith v. O’Connor, 846 F.2d 1205, 1208 (9th Cir. 1988). 10 Under the Youngberg standard, “‘the Constitution only requires that the courts make certain that 11 professional judgment in fact was exercised. It is not appropriate for the courts to specify which 12 of several professionally acceptable choices should have been made.’” Ray Robertson v. Contra 13 Costa Cty., No. 15-cv-02549-WHO, 2016 WL 4259135, at *4 (N.D. Cal. 2016) (quoting 14 Youngberg, 457 U.S. at 321). 15 The uncontested facts of this case show that Plaintiff experienced a bout of vomiting on 16 June 18, 2018 and during the early morning hours of June 19, 2018. SUF ¶¶ 26, 32. Dr. Dike was 17 not present at the hospital on June 18, but he visited Plaintiff during the morning of June 19, at 18 which point he diagnosed Plaintiff with gastroenteritis likely due to a staph infection (i.e., food 19 poisoning). Id. ¶¶ 30, 33, 44. Plaintiff again vomited during the afternoon of June 19, 2018, this 20 time with obvious blood in the vomitus. Id. ¶ 18. Dr. Dike then ordered Plaintiff to be transferred 21 to Community Regional Medical Center. Id. ¶ 34, 48. 22 In his opposition to Defendant’s motion for summary judgment, Plaintiff’s claim against 23 Defendant boils down to his contention that the doctor should have sent him to Community 24 Regional Medical Center after examining him during the morning of June 19, 2018, instead of 25 waiting until the afternoon of that same date. See Pl.’s Opp’n 4-5, 7 (Doc. 53 at 6-7, 9). Plaintiff 26 alleges that “Defendant put [his] life in je[o]pardy by not sending him to the hospital when 27 [Defendant] first saw him.” Id. 4-5. He further alleges that the “postponement of transporting 1 Id. 7. 2 As explained above, under the Youngberg professional judgment standard, Dr. Dike’s 3 medical “decision[s are] presumed to be valid.” Walker v. Poole, No. 1:16-cv-1665-AWI-EPG, 4 2020 WL 6887631, at *3 (E.D. Cal. 2020) (citing Youngberg, 457 U.S. at 322) (citation omitted). 5 Plaintiff fails to rebut this presumption. He presents no evidence that Dr. Dike’s decisions 6 departed from any standard of care, let alone that they departed to such an extent as to 7 demonstrate that the decisions were not based on any professional judgment. Plaintiff’s 8 contention that Dr. Dike should have sent him to the hospital during the morning of June 19, 9 2018, instead of waiting until the afternoon, amounts to no more than a difference of opinion 10 between Plaintiff and Dr. Dike, which is unsupported by any medical or other evidence. This is 11 insufficient to raise a genuine dispute of fact regarding the standard of care. See Mitchell, 818 12 F.3d at 444 (to survive summary judgment, a civil detainee must “present evidence sufficient to 13 rebut the Youngberg professional judgment standard”). 14 In addition, Plaintiff presents no evidence that Dr. Dike’s decision to send him to the 15 hospital during the afternoon, rather than the morning, of June 19 caused or worsened any of his 16 injuries. Plaintiff admits that he suffered from “a host of illnesses, including cirrhos[is] . . . [and] 17 late-stage liver disease,” (Pl.’s Opp’n 1) and Defendant’s evidence shows that Plaintiff’s vomiting 18 of blood was likely caused by his previous bout of vomiting, which was likely due to food 19 poisoning, e.g., Dike Decl. ¶¶ 18-19. Plaintiff’s contention that Dr. Dike’s decision caused him 20 injury or placed his life “in jeopardy” is again a bare opinion unsupported by any medical or other 21 evidence. 22 Hence, there is a complete absence of proof concerning essential elements of Plaintiff’s 23 case. Specifically, there is no “genuine dispute of material fact as to whether [Dr. Dike] 24 substantially departed from accepted professional judgment,” Bettys v. Quigley, 765 F. App’x 25 376, 377 (9th Cir. 2019) (citation omitted), and there is no genuine dispute of material fact as to 26 whether Dr. Dike’s actions or failures to act caused Plaintiff any harm. Summary judgment is 27 therefore appropriate. See Celotex, 477 U.S. at 322. 1 V. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the Court RECOMMENDS that Defendant’s motion for summary 3 judgment be GRANTED. These Findings and Recommendations will be submitted to the United 4 States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of 5 the date of service of these Findings and Recommendations, Plaintiff may file written objections 6 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 7 and Recommendations.” Plaintiff’s failure to file objections within the specified time may result 8 in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 9 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 IT IS SO ORDERED. 11

12 Dated: August 26, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 13

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