(PC) Davis v. Harris ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RONNELL DAVIS, Case No. 2:19-cv-01976-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS’ MOTION FOR 13 v. SUMMARY JUDGMENT BE DENIED 14 B. HARRIS, et al., OBJECTIONS DUE IN 14 DAYS 15 Defendant. ECF No. 30 16 17 18 Plaintiff, a diabetic inmate with a prescription for a daily diabetic snack, filed a grievance 19 indicating that he occasionally did not receive his snack. He alleges that after he filed his 20 grievance, two psychiatric technicians—defendants Harris and Hunter—withheld his snack three 21 days in a row in violation of his First and Eighth Amendment rights. Defendants move for 22 summary judgment, arguing that they were not responsible for giving him his snack and that they 23 took no action against him in response to his grievance. Additionally, they claim that they are 24 entitled to qualified immunity. 25 Summary Judgment Standard 26 Summary judgment is appropriate where there is “no genuine dispute as to any material 27 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 28 1 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 2 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 3 while a fact is material if it “might affect the outcome of the suit under the governing law.” 4 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818 5 F.2d 1422, 1436 (9th Cir. 1987). 6 Rule 56 allows a court to grant summary adjudication, also known as partial summary 7 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 8 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 9 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 10 single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply 11 both to a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ. 12 P. 56 (a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 13 Each party’s position must be supported by (1) citations to particular portions of materials 14 in the record, including but not limited to depositions, documents, declarations, or discovery; or 15 (2) argument showing either that the materials cited do not establish the presence or absence of a 16 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 17 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 18 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 19 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see 20 also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 21 “The moving party initially bears the burden of proving the absence of a genuine issue of 22 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 23 moving party must either produce evidence negating an essential element of the nonmoving 24 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 25 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 26 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 27 initial burden, the burden then shifts to the non-moving party “to designate specific facts 28 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 1 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 2 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 3 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 4 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 5 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. 6 Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 7 The court must apply standards consistent with Rule 56 to determine whether the moving 8 party has demonstrated there to be no genuine issue of material fact and that judgment is 9 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 10 “[A] court ruling on a motion for summary judgment may not engage in credibility 11 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 12 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 13 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 14 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 15 198 F.3d 1130, 1134 (9th Cir. 2000). 16 Background 17 To help regulate this blood sugar, plaintiff has a doctor’s order for a diabetic snack, 18 consisting of either two packages of crackers or one package of crackers and one piece of fresh 19 fruit. ECF No. 38 at 47, 60. The order neither specifies who is responsible for distributing the 20 snack nor whether it is to be given once a day or once in the morning and once in the evening. Id. 21 at 47. The California Correctional Health Care Services Operations Manual states that diabetic 22 snacks “shall be stored and distributed by institution food services and custody staff . . . .” ECF 23 No. 30-3 at 206-09. 24 On August 14, 2017, plaintiff asked defendant Hunter for nursing staff to provide his 25 diabetic snack once a day instead of custody staff providing it once a week. ECF No. 38 at 51. 26 Hunter responded, “I will inform nursing staff that crackers should only be given once a day and 27 not once weekly to avoid any future issues.” Id. Two days later, on August 16, plaintiff filed a 28 grievance stating that nursing staff had not provided his diabetic snack after his evening injection 1 on at least three occasions. Id. at 2, 76. The next day, August 17, defendant Harris gave plaintiff 2 his evening insulin and said, “you filed a [grievance] about the snacks now its an issue,” then told 3 plaintiff that the diabetic snacks were not available yet, but that he would bring them to plaintiff 4 later. Id. at 2. Later that day, Harris came to plaintiff’s cell and asked him to sign a piece of 5 paper. Id. at 3. Plaintiff asked what the paper was for, and Harris responded that it was for a 6 week’s supply of fourteen crackers. Id. Plaintiff refused to sign it and told Harris that he is 7 supposed to receive two crackers per day, not a week’s worth of crackers. Id. Harris gave 8 plaintiff one package of crackers and left. Id. 9 The next day, Hunter administered plaintiff’s evening insulin and then handed him one 10 package of crackers. Id. He told her that he needed two packages in case his blood sugar 11 dropped. Id. She smiled and told the escorting officer to take him away. Id. The following day, 12 August 19, Hunter repeated this exchange: she administered his evening insulin and gave him one 13 package of crackers; when he told her that he needed two packages, she smiled and told the 14 escorting officer to take him away. Id. That day, Hunter noted in plaintiff’s medical record that 15 she gave him one package of crackers during the evening diabetic line and that he claimed he had 16 not received his package of crackers earlier in the day. ECF No. 30-3 at 196. She also noted that 17 plaintiff’s medical order stated that he was to be given one package of crackers twice a day— 18 though defendants have not provided a copy of this order and it seems to be contradicted by an 19 August 14 note, in which Hunter stated that she had directed nursing staff to deliver the snack 20 once a day. Id. Finally, she noted that “[p]er diabetic cracker delivery receipt for 8/18/2017, 21 [plaintiff] refused to accept and refused to sign the cracker delivery.” Id. 22 In the early hours of August 20, plaintiff lost consciousness. Id. at 4. Emergency 23 personnel responded and gave him two glucose tubes and two sugar tablets to revive him. Id. On 24 August 21, plaintiff informed nurse J. Maalihan that nursing staff had not been providing the 25 diabetic snacks as ordered by his doctor. ECF No. 30-3 at 200. Maalihan wrote in plaintiff’s 26 medical record that he “advised our [psychiatric technics] not to give [plaintiff] the rest of the 27 crackers for the rest of the week. Instead give [plaintiff] 2 crackers at night after diabetic checks 28 or after insulin was received.” Id. The nurse also wrote in plaintiff’s medical record that a 1 “[f]inger stick shows no hypoglycemic episode since he got here” on August 4, 2017. Id. 2 Discussion 3 A. Eighth Amendment Deliberate Indifference 4 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 5 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 6 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for 7 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by 8 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury 9 or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s response to the 10 need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 11 1050, 1059 (9th Cir. 1992)). “This second prong—defendant’s response to the need was 12 deliberately indifferent—is satisfied by showing (a) a purposeful act or failure to respond to a 13 prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Id. (citing 14 McGuckin, 974 F.2d at 1060). Indifference may be manifest “when prison officials deny, delay 15 or intentionally interfere with medical treatment, or it may be shown by the way in which prison 16 physicians provide medical care.” Id. When a prisoner alleges a delay in receiving medical 17 treatment, the delay must have led to further harm for the prisoner to make a claim of deliberate 18 indifference to serious medical needs. See McGuckin, 974 F.2d at 1060 (citing Shapely v. Nevada 19 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985)). 20 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 21 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts 22 from which the inference could be drawn that a substantial risk of serious harm exists,’ but that 23 person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 24 837 (1994)). “If a prison official should have been aware of the risk, but was not, then the official 25 has not violated the Eighth Amendment, no matter how severe the risk.” Id. (quoting Gibson v. 26 Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of medical malpractice or 27 negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment.” 28 Id. at 1060. “[E]ven gross negligence is insufficient to establish a constitutional violation.” Id. 1 (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)). Additionally, a difference of 2 opinion between an inmate and prison medical personnel—or between medical professionals—on 3 appropriate medical diagnosis and treatment is not enough to establish a deliberate indifference 4 claim. See Toguchi, 391 F.3d at 1058; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 5 There is no dispute that plaintiff’s diabetes is a serious medical need. See Lolli v. Cty. of 6 Orange, 351 F.3d 410, 419-420 (9th Cir. 2003). The issue is whether defendants were 7 deliberately indifferent to that need. To be deliberately indifferent, there must be a purposeful act 8 or failure to act on the part of the defendant and a resulting harm. See McGuckin, 974 F.2d at 9 1060 (citing Shapely, 766 F.2d at 407). 10 Defendants argue that they could not have been deliberately indifferent because they, as 11 nursing staff, were not responsible for distributing diabetic snacks. ECF No. 30-2 at 7. However, 12 there is evidence demonstrating that nursing staff, including defendants, distributed snacks to 13 plaintiff and other inmates. ECF No. 30-3 at 196, 200; see ECF No. 38 at 2-3, 51, 85 (declaration 14 of Eduardo Franco, another diabetic inmate, who states that his diabetic snacks were always 15 distributed by nursing staff). Considering the foregoing, defendants have not demonstrated the 16 absence of a genuine dispute as to whether they, as nursing staff, were responsible for distributing 17 diabetic snacks. 18 Nevertheless, even if defendants were responsible for delivering the snacks on some 19 occasions, deliberate indifference requires more than mere negligence or malpractice: plaintiff 20 must provide evidence indicating that defendants acted in deliberate disregard of a substantial risk 21 of serious harm of which they were personally aware. See Toguchi, 391 F.3d at 1057-60. 22 On August 14, Hunter wrote in plaintiff’s medical record that nursing staff was to give 23 him diabetic crackers once a day. Then, Harris told plaintiff that his diabetic snacks were an issue 24 because of his grievance and gave him only one package of crackers—half the amount plaintiff 25 should have received. Plaintiff told Harris that he needed two packages of crackers. The 26 evidence indicates that Harris was informed by both Hunter and plaintiff that plaintiff was 27 supposed to receive two packages of crackers once a day, and that Harris deliberately ignored 28 those instructions. The same is true for Hunter, since she personally wrote that plaintiff was 1 supposed to receive two packages of crackers once a day and then provided half that amount on 2 two consecutive days. Accordingly, there is a genuine dispute as to whether defendants were 3 deliberate indifferent to plaintiff’s serious medical needs. 4 Defendants also argue that, even assuming plaintiff missed his diabetic snack, his medical 5 records establish that he was not harmed. ECF No. 30-2 at 13. Records from August 17, 2017, 6 show that plaintiff’s blood sugar had “been very good” over the prior two weeks, and a treatment 7 note from August 21, 2017, states that “[f]inger stick shows no hypoglycemic episode since he 8 got here.” ECF No. 30-3 at 200. However, plaintiff states in a sworn declaration that in the early 9 hours of August 20, 2017, he lost consciousness and was revived only after medical personnel 10 gave him two glucose tubes and two sugar tablets. ECF No. 38 at 4. And while plaintiff is not a 11 medical doctor and is not qualified to testify to medical determinations, he can describe his 12 symptoms. See S. Cal. Hous. Rts. Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F. Supp. 2d 13 1061, 1070 (C.D. Cal. 2005) (observing that a declarant has personal knowledge of his or her own 14 symptoms). This evidence, while not overwhelming, raises a genuine dispute as to whether he 15 sustained an injury. 16 B. First Amendment Retaliation Claim 17 The First Amendment guarantees prisoners the right to file prison grievances and to bring 18 civil rights suits in court. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). A prison 19 official who retaliates against an inmate for these protected activities violates the First 20 Amendment. See, e.g., Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995). To succeed on 21 a First Amendment retaliation claim, a plaintiff must show that a state actor took an adverse 22 action against him because of his protected conduct, that such action chilled his exercise of his 23 First Amendment rights, and that the action did not reasonably advance a legitimate correctional 24 goal. See Rhodes, 408 F.3d at 567-68. A plaintiff can support a claim of retaliation with 25 evidence of the defendant’s knowledge of the protected activity, their conduct and statements, and 26 the timing of the allegedly retaliatory act. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir.1995) 27 (“[T]iming can properly be considered as circumstantial evidence of retaliatory intent.”); Bruce v. 28 Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (statements and suspect timing raised triable issue of 1 fact regarding whether the defendants’ motive behind the plaintiff’s gang validation was 2 retaliatory). 3 Plaintiff engaged in protected activity when he filed his grievance on August 16. See 4 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). Harris knew about plaintiff’s grievance 5 and told him, “you filed a [grievance] about the snacks now its an issue.” ECF No. 38 at 2. The 6 timing of this statement—the day after the grievance was submitted—in conjunction with an 7 immediate action of plaintiff being denied his full diabetic snack, is sufficient to create a genuine 8 dispute as to whether Harris engaged in a retaliatory action.1 However, plaintiff has presented no 9 evidence that Hunter knew of his protected activity. I therefore recommend summary judgment 10 be granted for Hunter on plaintiff’s retaliation claim.2 11 C. Qualified Immunity 12 Defendants also claim that they are entitled to qualified immunity. ECF No. 30 at 13. In 13 assessing whether qualified immunity attaches, a court asks “two questions: (1) whether the facts, 14 taken in the light most favorable to the non-moving party, show that the officials’ conduct 15 violated a constitutional right, and (2) whether the law at the time of the challenged conduct 16 clearly established that the conduct was unlawful.” Felarca v. Birgeneau, 891 F.3d 809, 815 (9th 17 Cir. 2018). “To be clearly established, a legal principle must have a sufficiently clear foundation 18 in then-existing precedent,” as shown in “controlling authority or a robust consensus of cases of 19 persuasive authority.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018). Because, as 20 discussed above, there is a genuine dispute as to whether defendants violated plaintiff’s Eighth 21 Amendment rights, I turn to whether the right at issue was clearly established at the time. 22 Viewing the facts in the light most favorable to plaintiff, he has shown that defendants 23 deliberately denied him a medically necessary diet in contravention of a prescription from his 24 doctor. It has been clearly established for decades that the Eighth Amendment is violated when 25 officials deliberately deny medically necessary treatment, including medical diets for prisoners 26 1 As previously noted, plaintiff’s evidence shows that he only received half of his snacks 27 on the three days immediately after he submitted his grievance. 2 Because I recommend granting summary judgment for Hunter on plaintiff’s retaliation 28 claim, I do not address whether she is entitled to qualified immunity on that claim. 1 | with diabetes. See Wakefield v. Thompson, 177 F.3d 1160, 1164 (9th Cir.1999) (finding that the 2 | denial of prescription medicine constituted deliberate indifference to a prisoner’s serious medical 3 | needs); Lolli v. Cty. of Orange, 351 F.3d 410, 419-420 (9th Cir. 2003) (holding that deliberate 4 | indifference to an “objectively, sufficiently serious risk of harm” may be shown when an official 5 | intentionally “[l]eav[es] a diabetic . . . without proper food or insulin when it is needed”) (internal 6 | quotation marks omitted). Accordingly, I find that defendants are not entitled to qualified 7 | immunity on plaintiff's claim of deliberate indifference. 8 Harris argues that he is entitled to qualified immunity on plaintiffs retaliation claim. As 9 | plaintiff has raised a genuine issue of material fact as to whether the first question might be 10 | answered in his favor, I now address whether the law was clearly established at the time. It was 11 } clearly established in 2016 that retaliating against a prisoner for filing a grievance violates the 12 | First Amendment, see Rhodes, 408 F.3d at 568, and that an adverse action can be constituted by 13 | withholding doctor-prescribed treatment, see Wakefield, 177 F.3d at 1164. Thus, I find that 14 | Harris is not entitled to qualified immunity on plaintiff's retaliation claim. 15 Accordingly, it is hereby RECOMMENDED that defendants’ motion for summary 16 | judgment, ECF No. 30, be granted as to plaintiffs claim of retaliation against defendant Hunter 17 | and denied as to all remaining claims. 18 I submit these findings and recommendations to the district judge under 28 U.S.C. 19 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 20 | Eastern District of California. The parties may, within 14 days of the service of these findings 21 | and recommendations, file written objections with the court. Such objections should be captioned 22 | “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 23 | review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 24 95 IT IS SO ORDERED. 26 | q Sty — Dated: _ February 25, 2022 Q_-——_ 27 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28