(PC) Morales v. Anastassiou ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH MORALES, No. 2:20-cv-00704-DAD-KJN (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 14 PETER ANASTASSIOU, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S 15 Defendant. REQUEST FOR RECONSIDERATION 16 (Doc. Nos. 48, 64, 68) 17 18 Plaintiff Ralph Morales is a state prisoner proceeding with counsel in this civil rights 19 action brought under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 29, 2022, the assigned magistrate judge issued an order denying plaintiff’s 22 request for judicial notice (Doc. No. 64) and findings and recommendations recommending that: 23 (1) defendant’s motion for summary judgment (Doc. No. 48) be granted because there is no 24 genuine issue of material fact regarding whether defendant acted with deliberate indifference to 25 plaintiff’s serious medical needs, and (2) the court decline to exercise supplemental jurisdiction 26 over plaintiff’s state law medical malpractice claim in light of the recommendation that summary 27 judgment be granted in defendant’s favor on plaintiff’s sole federal claim. (Doc. No. 64.) The 28 pending findings and recommendations were served on the parties and contained notice that any 1 objections thereto were to be filed within fourteen (14) days after service. (Id. at 16.) On 2 December 23, 2022, plaintiff filed objections to the pending findings and recommendations, as 3 well as “objections” to the magistrate judge’s order denying plaintiff’s request for judicial notice.1 4 (Doc. No. 68.) Defendant filed a response thereto on January 3, 2023 but did not file objections 5 of his own. (Doc. No. 71.) 6 In his objections, plaintiff first contends that a reasonable jury could find in his favor as to 7 his deliberate indifference claim. (Doc. No. 68 at 6.) Plaintiff’s contention in this regard merely 8 reiterates arguments that he raised in his opposition to defendant’s motion for summary judgment 9 and that have already been properly addressed in the pending findings and recommendations. 10 Specifically, plaintiff argues that defendant possessed “plenty of evidence that Plaintiff’s [lung] 11 was infectious [rather than cancerous]” and that accordingly, defendant’s “rush to surgery was not 12 justified” and rose to the level of deliberate indifference. (Doc. No. 68 at 6–7.) However, as the 13 1 The court construes plaintiff’s latter objections as a request for reconsideration of the magistrate 14 judge’s order denying plaintiff’s request for judicial notice brought pursuant to Local Rule 303, 15 which provides that a district judge shall modify or set aside any part of the magistrate judge’s order which is “found to be clearly erroneous or contrary to law.” L.R. 303(f); see also 28 U.S.C. 16 § 636(b)(1)(A). The magistrate judge’s factual determinations are reviewed for clear error, while legal conclusions are reviewed to determine whether they are contrary to law. United States v. 17 McConney, 728 F.2d 1195, 1200–01 (9th Cir. 1984), overruled on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). “A magistrate judge’s decision is ‘contrary to 18 law’ if it applies an incorrect legal standard, fails to consider an element of [the] applicable 19 standard, or fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Martin v. Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014). 20 Here, plaintiff objects to the magistrate judge’s denial of his request for judicial notice of two sets of documents: (1) lists of Medicare reimbursement rates for an upper lobectomy and a 21 mediastinoscopy, and (2) lists of liens against defendant documented by the City and County of San Francisco Office of the Assessor-Recorder and the San Mateo County Office of the Assessor- 22 County Clerk-Recorder. (See Doc. Nos. 50-2 at 1–14; 64 at 5, 16; 68 at 4.) Although these 23 public records are properly the subject of judicial notice, see Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001), the magistrate judge did not err in declining to take judicial notice of 24 these documents because plaintiff did not show that the documents were relevant to the court’s analysis of defendant’s motion for summary judgment. (See Doc. No. 64 at 5); see, e.g., 25 Roadrunner Intermodal Servs., LLC v. T.G.S. Transp., Inc., Nos. 1:17-cv-01207-DAD-BAM, 2019 WL 1400093, at *4 (E.D. Cal. Mar. 28, 2019) (declining to take judicial notice of document 26 that is irrelevant to deciding the matter at issue); Garcia v. Sweet 2017, LLC, No. 2:20-cv-02181- 27 JAM-DB, 2021 WL 2417139, at *2 (E.D. Cal. June 14, 2021) (declining to take judicial notice of irrelevant exhibits that were otherwise proper subjects of judicial notice). Therefore, plaintiff’s 28 request for reconsideration will be denied. 1 magistrate judge correctly explained in the pending findings and recommendations, “[a]lthough 2 [defendant] knew that [plaintiff] had tuberculosis in the past, prisons increase a person’s risk of 3 getting it, and [plaintiff] had not been tested for tuberculosis, [defendant] estimated that there was 4 a 70 to 95 percent likelihood that the mass was malignant,”2 and “[t]he mere fact that 5 ///// 6 7 2 To the extent that plaintiff argues that the pending findings and recommendations improperly conclude that defendant’s medical notes establish defendant’s actual state of mind, this argument 8 is unavailing. (See Doc. No. 68 at 8–9.) The magistrate judge explained that to prevail on his deliberate indifference claim, plaintiff must establish both that (1) defendant’s course of treatment 9 was “medically unacceptable under the circumstances” and (2) defendant “chose this course in conscious disregard of an excessive risk to plaintiff’s health.” (Doc. No. 64 at 12) (quoting 10 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). With respect to the first requirement, the 11 magistrate judge found that plaintiff did not establish a genuine issue of material fact regarding the medical acceptability of defendant’s chosen course of treatment. (Id. at 12–13.) This finding 12 alone is a sufficient basis upon which to grant defendant’s motion for summary judgment. Nonetheless, the magistrate judge also noted that as to the second requirement, “even assuming 13 [defendant’s] course of treatment was medically unacceptable,” the evidence before the court on summary judgment showed that defendant “thoughtfully considered the options and carefully 14 performed the course of treatment,” and plaintiff had not presented any evidence establishing a 15 genuine disputed issue of material fact as to whether defendant “chose this treatment out of conscious disregard of an excessive risk to [plaintiff’s] health.” (Id. at 15.) In his objections, 16 plaintiff argues that because defendant might have been dishonest in his contemporaneous notes and communications regarding plaintiff’s medical treatment prior to the surgery—such as 17 defendant’s letter to plaintiff’s primary care doctor explaining that plaintiff’s lung lesion was “suspicious enough to warrant surgical resection”—the magistrate judge should not have relied 18 on those notes and communications as evidence of defendant’s state of mind. (See Doc. Nos. 64 19 at 8, 15; 68 at 8–9.) Plaintiff’s objection in this regard does not provide a basis upon which to reject the pending findings and recommendations. The magistrate judge’s finding as to the first 20 requirement—i.e., that plaintiff did not demonstrate on summary judgment that there was a genuine issue of material fact as to whether defendant’s course of treatment was medically 21 unacceptable—is both proper and provides a sufficient basis upon which to grant defendant’s motion for summary judgment. The magistrate judge noted that the evidence on summary 22 judgment established that “[t]hroughout the relevant time period, [plaintiff] was seen by 23 numerous doctors and underwent numerous tests to determine the cause of his chest pain,” those tests indicated “either a malignancy or infection,” and defendant conducted a surgery to identify 24 and treat potential cancer. (See Doc. No. 64 at 13–14.) The magistrate judge thus found that plaintiff had not shown the existence of a genuine issue of material fact as to whether defendant 25 chose a medically unacceptable course of treatment and, perhaps most importantly, recognized that a “mere disagreement” of medical opinion on the necessity of plaintiff’s surgery “does not 26 demonstrate deliberate indifference as a matter of law.” (Id. at 12–14) (citing Porretti v. 27 Dzurenda, 11 F.4th 1037, 1048 (9th Cir. 2021)). Thus, the magistrate judge’s finding that defendant was entitled to summary judgment on plaintiff’s deliberate indifference claim simply 28 did not turn on evidence as to defendant’s state of mind. 1 [defendant’s] diagnosis of potential lung cancer . . . was incorrect is not enough to rise to the level 2 of deliberate indifference.” (Doc. No. 64 at 15.) 3 Second, in his objections, plaintiff asserts for the first time that this case is analogous to 4 another case from this district in which the court denied a prison doctor’s motion for summary 5 judgment as to a prisoner plaintiff’s deliberate indifference claim. (Doc. No. 68 at 10.) Plaintiff 6 did not cite to this analogous case in his opposition to defendant’s pending motion for summary 7 judgment. Courts have discretion to consider or decline new arguments raised for the first time in 8 an objection to a findings and recommendations.” Syed v. M-I, L.L.C., No. 1:12-cv-01718, 2014 9 WL 6685966, at *7 (E.D. Cal. Nov. 26, 2014) (citing Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 10 2002). Although plaintiff is represented by counsel and has provided no explanation for why this 11 argument is being raised for the first time in his objections to the findings and recommendations, 12 the undersigned has nevertheless considered the argument and finds it unavailing. Specifically, 13 plaintiff contends that this action is analogous to Elliot v. Reddy, No. 2:10-cv-02980-MCE-KJN, 14 2014 WL 1877566 (E.D. Cal. May 9, 2014), report and recommendation adopted, 2014 WL 15 2889765 (E.D. Cal. June 25, 2014), in which the court denied summary judgment in favor of a 16 defendant doctor who performed surgery on the prisoner plaintiff. In Elliot, the court concluded 17 that the plaintiff had demonstrated triable issues of material fact concerning whether the 18 defendant failed to consider evidence suggesting that the plaintiff’s lesion was not cancerous prior 19 to proceeding with surgery and thus demonstrated triable issues of fact regarding whether the 20 defendant’s course of treatment was medically acceptable under the circumstances. See Elliot, 21 2014 WL 1877566, at *25. In contrast to the situation in Elliot, where the evidence before the 22 court on summary judgment “demonstrated triable issues of fact concerning whether [the 23 doctor’s] course of treating plaintiff was ‘medically unacceptable under the circumstances,’ and 24 chosen ‘in conscious disregard of an excessive risk to plaintiffs health,’” here the parties do not 25 dispute that defendant acknowledged the possibility that plaintiff’s mass was not cancerous and 26 “knew that [plaintiff] had tuberculosis in the past, prisons increase a person’s risk of getting it, 27 and [plaintiff] had not been tested for tuberculosis.” Id. (quoting Jackson v. McIntosh, 90 F.3d 28 330, 332 (9th Cir. 1996)); (Doc. No. 64 at 15.) Thus, the decision in Elliot is distinguishable and 1 does not serve as a basis to reject the magistrate judge’s conclusion that plaintiff here has failed to 2 establish a triable issue of fact regarding whether defendant’s course of treatment was medically 3 acceptable under the circumstances. (Doc. No. 68 at 6.) 4 Finally, plaintiff objects to the pending findings and recommendations on the basis that 5 summary judgment is inappropriate where there are conflicting expert reports and expert 6 discovery has not closed. (Doc. No. 68 at 14.) As the pending findings and recommendations 7 noted, however, “[t]hese diverse [expert] findings merely reflect a difference of opinion on the 8 necessity of surgery,” and a “mere disagreement . . . of medical opinion between experts does not 9 demonstrate deliberate indifference as a matter of law.” (Doc. No. 64 at 14) (citing Poretti v. 10 Dzurenda, 11 F.4th 1037, 1048 (9th Cir. 2021)). Thus, plaintiff has not explained how “having 11 the chance to prepare rebuttal reports and depose the other [party’s] expert” would lead to a 12 different conclusion in addressing defendant’s motion for summary judgment. (See Doc. No. 68 13 at 14–15.) Therefore, plaintiff’s objections in this regard likewise provide no basis upon which to 14 reject the pending findings and recommendations. 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 16 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 17 objections and defendant’s response thereto, the court concludes that the findings and 18 recommendations are supported by the record and by proper analysis. 19 Accordingly, 20 1. The findings and recommendations issued on November 29, 2022 (Doc. No. 64) 21 are adopted in full; 22 2. Plaintiff’s request for reconsideration of the magistrate judge’s order denying 23 plaintiff’s request for judicial notice (Doc. No. 68) is denied; 24 3. Defendant’s motion for summary judgment (Doc. No. 48) is granted as to 25 plaintiff’s claim brought pursuant to 42 U.S.C. § 1983; 26 4. Judgment shall be entered in defendant’s favor on plaintiff’s deliberate 27 indifference claim brought pursuant to 42 U.S.C. § 1983; 28 ///// 1 5. The court declines to exercise supplemental jurisdiction over plaintiff's state law 2 claim, and on this basis, plaintiffs state law claim is dismissed; and 3 6. The Clerk of the Court is directed to close this case. 4 IT IS SO ORDERED. > | Dated: _March 21, 2023 Dal A. 2, pel 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28