(PC) Rice v. Fielder

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KORDY RICE, Case No. 2:18-cv-02743-TLN-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 FIELDER, et al., 15 Defendants. 16

17 18 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 19 42 U.S.C. § 1983 alleging that Defendant Wetterer was deliberately indifferent to his serious 20 medical needs in violation of the Eighth Amendment. Pending before the Court is Defendant 21 Wetterer’s1 motion for summary judgment, ECF No. 55, Plaintiff’s opposition, ECF No. 57, and 22 Defendant’s reply, ECF No. 58. Defendant argues that he is entitled to summary judgment 23 because there is no evidence that he was deliberately indifferent to Plaintiff’s serious medical 24 needs. ECF No. 55. He also claims qualified immunity. The undersigned finds that Defendant 25 Wetterer was not deliberately indifferent and thus recommends granting his motion for summary 26 judgment. 27

28 1 Defendant Fielder did not join Defendant Wetterer’s motion for summary judgment. 1 I. BACKGROUND 2 Plaintiff was housed in the exhibitionist behavior unit (“IEX unit”) at California 3 State Prison-Sacramento and on September 14, 2016, he told custody staff that he was suicidal. 4 ECF No. 55-4 at 20. He was placed in a holding cell for a suicide risk evaluation, which was 5 conducted by Defendant Wetterer, a clinical psychologist. Id. at 19-20. Defendant Wetterer 6 noted in his evaluation that Plaintiff did not report a plan to kill himself or a desire to die. Id. at 7 19. Plaintiff stated during the evaluation, “I’m not supposed to be up in this block man, I don’t 8 have any recent IEX’s, this ain’t right. I’m feeling like cutting on myself right now, I can’t deal 9 with this, it feels like I am being punished for something I didn’t do.” Id. Defendant Wetterer 10 noted that it appeared Plaintiff’s suicidal intentions were in response to being transferred to the 11 IEX unit. Id. Defendant Wetterer also noted that prior to his examination of Plaintiff, custody 12 staff reported hearing Plaintiff talking with another inmate about an upcoming sporting event. Id. 13 A review of Plaintiff’s medical history showed that he was seen for suicide 14 intentions on three prior occasions. The first time was in 2013 when he stayed at a Mental Health 15 Crisis Bed (“MHCB”) for eighteen days, during which he did not use any of the treatment 16 opportunities available to him. Id. Roughly two years after that, he had superficial cut and 17 splashed Kool-Aid in his cell to make it look like blood. Id. Finally, in summer of 2016, Plaintiff 18 stayed at the Department of State Hospital (“DSH”). Id. 19 Defendant Wetterer also determined that Plaintiff was at a low risk for 20 intentionally killing himself. Id. Defendant Wetterer concluded that Plaintiff showed no signed 21 of psychosis, excessive anxiety, panic, or thoughts consistent with hopelessness. Id. He noted 22 that there had been no near lethal attempts or any history of such, no self-injurious behavior, no 23 evidence of intent or excessive guilt, expression of hopelessness or helplessness, depression, no 24 signs of symptoms of acute psychotic disorder or other major mood disorder. Id. Defendant 25 Wetterer considered Plaintiff to have some risk for unintentional lethal harm if he were to become 26 agitated. Id. Following the evaluation, Defendant Wetterer did not recommend hospitalization, 27 but did request that clinical staff continue to work with Plaintiff to manage his depression and 28 teach him distress tolerance skills. Id. After Defendant Wetterer’s evaluation, Plaintiff cut his 1 wrists with a razor. ECF No. 56 at 18. Plaintiff was the transported to another building and 2 placed on suicide watch. Id. at 19. 3 Plaintiff returned to his regular housing the next day on September 15 and was 4 evaluated for suicide risk by Dr. R. Norris. 2 Id. at 20; ECF No. 55-4 at 21. Dr. Norris noted that 5 Plaintiff did not report a plan to kill himself or a desire to die and “[d]enied [having] current 6 suicidal or homicidal ideation, intent, or plans.” Id. at 21-22. Plaintiff also told Dr. Norris, 7 “[t]hey’re messing with my program. They put me in the IEX cluster, but said I’m not supposed 8 to be there.” Id. After Dr. Norris suggested Plaintiff take his concerns to his housing committee, 9 Plaintiff agreed to do so. Id. Dr. Norris considered Plaintiff as being at a moderate risk because 10 of his medical history. Plaintiff did not make any suicide attempts that day. ECF No. 56 at 20. 11 Plaintiff was evaluated again by Dr. Norris on September 16, 2016. ECF No. 55-4 12 at 23. Dr. Norris noted that plaintiff did not report a plan to kill himself or a desire to die. Id. Dr. 13 Norris noted that Plaintiff was at a low acute risk because Plaintiff denied suicidal ideation. He 14 also noted his belief that Plaintiff’s suicidal ideation was a secondary gain for being moved out of 15 the IEX unit. Id. That evening, Plaintiff cut his wrist with a paperclip and was transferred to 16 another cell. ECF No. 56 at 22. 17 The next morning, September 17, 2016, Plaintiff reported suicidal ideation to 18 custody staff. ECF No. 55-4 at 26. He was evaluated by Defendant Dr. J. Fielder, who 19 concluded that hospitalization was not clearly required and that the “evidence strongly suggests 20 [Plaintiff] is dissembling & mildly self-injuring for secondary gain, i.e., controlling housing.” Id. 21 Defendant Fielder further concluded that “admitting [Plaintiff] to a MHCB would only reinforce 22 this behavior but also consume valuable [mental health] resources.” Defendant Fielder 23 recommended that Plaintiff be placed on a five-day suicide prevention protocol. Id. 24 / / / 25 / / / 26 / / / 27

28 2 Dr. Norris is not a party to this action. 1 Within minute of learning about Defendant Fielder’s recommendation, Plaintiff 2 cut his wrist and reported suicidal ideation and threats. Id. at 28-30. Defendant Wetterer 3 evaluated Plaintiff shortly thereafter. Id. at 31-32. During the evaluation, Plaintiff said, “I still 4 feel suicidal, why am I being sent back? What do I have to do, chop my head off? I’m burnt out, 5 I’m tired of being locked up.” Id. at 32. Defendant Wetterer noted that Plaintiff was showing 6 “parasuicidal gestures” in order to be “placed in a crisis bed.” Id. He recommended Plaintiff be 7 removed to his regular housing. Id. After Defendant Wetterer’s evaluation, Plaintiff cut his left 8 forearm. Id. at 33. An evaluation of his injuries showed that the cut was “quite deep, about 0.5 9 cm deep and approximately 4 cm wide.” Id. He received sutures for the wound. Id. 10 Plaintiff was evaluated the next day by D. Salz. Id. at 36. Salz concluded that 11 hospitalization was not necessary and recommended that Plaintiff remain on suicide prevention 12 protocols. Id. 13

14 II. STANDARD FOR SUMMARY JUDGEMENT 15 The Federal Rules of Civil Procedure provide for summary judgment or summary 16 adjudication when “the pleadings, depositions, answers to interrogatories, and admissions on file, 17 together with affidavits, if any, show that there is no genuine issue as to any material fact and that 18 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 19 standard for summary judgment and summary adjudication is the same. See Fed. R. Civ. P. 20 56(a), 56(c); see also Mora v. ChemTronics, 16 F. Supp. 2d. 1192, 1200 (S.D. Cal. 1998). One of 21 the principal purposes of Rule 56 is to dispose of factually unsupported claims or defenses. See 22 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Under summary judgment practice, the 23 moving party

24 . . . always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, 25 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a 26 genuine issue of material fact.

27 Id., at 323 (quoting former Fed. R. Civ. P. 56(c)); see also Fed. R. Civ. P. 56(c)(1). 28 1 If the moving party meets its initial responsibility, the burden then shifts to the 2 opposing party to establish that a genuine issue as to any material fact actually does exist. See 3 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to 4 establish the existence of this factual dispute, the opposing party may not rely upon the 5 allegations or denials of its pleadings but is required to tender evidence of specific facts in the 6 form of affidavits, and/or admissible discovery material, in support of its contention that the 7 dispute exists. See Fed. R. Civ. P. 56(c)(1); see also Matsushita, 475 U.S. at 586 n.11. The 8 opposing party must demonstrate that the fact in contention is material, i.e., a fact that might 9 affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 10 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 11 Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could 12 return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 13 (9th Cir. 1987). To demonstrate that an issue is genuine, the opposing party “must do more than 14 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 15 taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 16 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). It is sufficient that “the 17 claimed factual dispute be shown to require a trier of fact to resolve the parties’ differing versions 18 of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. 19 In resolving the summary judgment motion, the Court examines the pleadings, 20 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. 21 See Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, see Anderson, 22 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the 23 court must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587. 24 Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s obligation to 25 produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen 26 Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 27 1987). Ultimately, “[b]efore the evidence is left to the jury, there is a preliminary question for the 28 judge, not whether there is literally no evidence, but whether there is any upon which a jury could 1 properly proceed to find a verdict for the party producing it, upon whom the onus of proof is 2 imposed.” Anderson, 477 U.S. at 251. 3 4 III. DISUCSSION 5 Defendant Wetterer argues that Plaintiff did not have a serious medical need and 6 that he was not deliberately indifferent because he did not believe Plaintiff was a danger to 7 himself. ECF No. 55-2 at 7-9. The Court finds that Plaintiff did suffer a serious medical need, 8 but that Defendant Wetterer’s response was not deliberately indifferent. Thus, the Court 9 recommends that Defendant Wetterer’s motion be granted. 10 The treatment a prisoner receives in prison and the conditions under which the 11 prisoner is confined are subject to scrutiny under the Eighth Amendment, which prohibits cruel 12 and unusual punishment. See Helling v. McKinney, 509 U.S. 25, 31 (1993); Farmer v. Brennan, 13 511 U.S. 825, 832 (1994). The Eighth Amendment “. . . embodies broad and idealistic concepts 14 of dignity, civilized standards, humanity, and decency.” Estelle v. Gamble, 429 U.S. 97, 102 15 (1976). Conditions of confinement may, however, be harsh and restrictive. See Rhodes v. 16 Chapman, 452 U.S. 337, 347 (1981). Nonetheless, prison officials must provide prisoners with 17 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 18 801 F.2d 1080, 1107 (9th Cir. 1986). A prison official violates the Eighth Amendment only when 19 two requirements are met: (1) objectively, the official’s act or omission must be so serious such 20 that it results in the denial of the minimal civilized measure of life’s necessities; and 21 (2) subjectively, the prison official must have acted unnecessarily and wantonly for the purpose of 22 inflicting harm. See Farmer, 511 U.S. at 834. Thus, to violate the Eighth Amendment, a prison 23 official must have a “sufficiently culpable mind.” See id. 24 Deliberate indifference to a prisoner’s serious illness or injury, or risks of serious 25 injury or illness, gives rise to a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105; 26 see also Farmer, 511 U.S. at 837. An injury or illness is sufficiently serious if the failure to treat a 27 prisoner’s condition could result in further significant injury or the “. . . unnecessary and wanton 28 infliction of pain.” McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992); see also Doty v. 1 Cnty. of Lassen, 37 F.3d 540, 546 (9th Cir. 1994). Factors indicating seriousness are: (1) whether 2 a reasonable doctor would think that the condition is worthy of comment; (2) whether the 3 condition significantly impacts the prisoner’s daily activities; and (3) whether the condition is 4 chronic and accompanied by substantial pain. See Lopez v. Smith, 203 F.3d 1122, 1131-32 (9th 5 Cir. 2000) (en banc). 6 The requirement of deliberate indifference is less stringent in medical needs cases 7 than in other Eighth Amendment contexts because the responsibility to provide inmates with 8 medical care does not generally conflict with competing penological concerns. See McGuckin, 9 974 F.2d at 1060. Thus, deference need not be given to the judgment of prison officials as to 10 decisions concerning medical needs. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 11 1989). Negligence in diagnosing or treating a medical condition does not, however, give rise to a 12 claim under the Eighth Amendment. See Estelle, 429 U.S. at 106. Moreover, a difference of 13 opinion between the prisoner and medical providers concerning the appropriate course of 14 treatment does not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 15 330, 332 (9th Cir. 1996). 16 The Ninth Circuit has expressly held that, “[a] heightened suicide risk or an 17 attempted suicide is a serious medical need.” Conn v. City of Reno, 591 F.3d 1081, 1095 (9th 18 Cir. 2010), vacated, 563 U.S. 915 (2011), opinion reinstated in relevant part, 658 F.3d 897 (9th 19 Cir. 2011). Plaintiff discussed with Defendant Wetterer suicidal ideations on September 14 and 20 17 and cut his wrists on both of those days. Those actions satisfy objective component of a 21 serious medical need. Kamakeeaina v. City & Cty. of Honolulu, No. CIV. 11-00770 JMS, 2014 22 WL 1691611, at *7 (D. Haw. Apr. 29, 2014), aff’d sub nom. Kamakeeaina v. Maalo, 680 F. 23 App’x 631 (9th Cir. 2017) (finding statements made by the plaintiff to the defendants that he was 24 “ready to commit suicide” were sufficient to show a serious medical need). 25 Defendant Wetterer was not deliberately indifferent to Plaintiff’s serious medical 26 needs. Defendant Wetterer conducted two suicide evaluations of Plaintiff. During both 27 evaluations, Defendant Wetterer reviewed Plaintiff’s medical history, recent evaluations, 28 discussed Plaintiff with custody staff, and in his professional opinion determined that Plaintiff 1 | was not suicidal. See Vasquez v. Cty. of Santa Clara, 803 F. App’x 100, 102 (9th Cir. 2020) 2 | (finding no deliberate indifference when Defendant, “the last mental health professional to 3 || evaluate [the decedent] before his suicide,” “reviewed [his] medical records, consulted with the 4 | officer on duty, observed and conversed with [him], and, in his professional opinion, determined 5 | that [he] was not suicidal”); see also Hendon v. White, 320 F. App’x 717, 718 (9th Cir. 2009) 6 | (affirming dismissal of deliberate indifference claims because the Plaintiff's assertion that the 7 | Defendants improperly released him from suicide watch stated at most claim for negligence). g || ECF No. 57 at 21. Further, any difference of opinion between Plaintiff and Defendant Wetterer g | on where Plaintiff should have been housed does not amount to deliberate indifference. See 10 | Hendon, 320 F. App’x at 718 (holding that “difference in opinion between [Plaintiff] and the 11 | prison physicians about the preferred course of medical treatment [for suicide risk] does not 12 | constitute an Eighth Amendment violation”). 13 14 IV. CONCLUSION 15 Based on the foregoing, the undersigned recommends that Defendant’s motion for 16 || summary judgment, ECF No. 55, be granted. Given the absence of a triable issue on □□□□□□□□□□□ 17 || deliberate indifference claim as against Defendant Wetterer, Defendant’s assertion of qualified 18 | immunity does not bear evaluation here. 19 These findings and recommendations are submitted to the United States District 20 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 21 || after being served with these findings and recommendations, any party may file written 22 | objections with the court. Responses to the objections shall be filed within 14 days after service 23 || of objections. Failure to file objections within the specified time may waive the right to appeal. 24 | See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 26 Dated: March 2, 2022 Sx