(PC) Wheaten v. Knoll

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA DERRICK WHEATEN, Case No.: 1:18-cv-00885-AWI-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO GRANT DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT S. KNOLL, et al., (Doc. 35) 15 Defendants.

17 Defendants Knoll, Capocciama, Gilliam, and Wildes move for summary judgment. (Doc.

18 35.) Plaintiff Derrick Wheaten filed an amended opposition to Defendants’ motion on December 9, 2019, to which Defendants replied. (Docs. 58-60.) For the reasons set forth below, the Court recommends that Defendants’ motion be granted and this action be dismissed.

21 I. SUMMARY OF FACTS 22 Plaintiff underwent surgery on July 19, 2016, to remove tumors in his forehead, left arm, and buttocks. (Doc. 1 at 2.) Plaintiff contends that the staples on his buttocks were removed “too early” post-surgery, causing the “wound to reopen prematurely and forc[ing] plaintiff to get packing 3 to 4 times per week to stop excessive blood discharge and drainage.” (Id. at 3.) On August 5, 2016, a doctor at Federal Correctional Institution, Mendota, provided Plaintiff with an accommodation “chrono” for a lower bunk, valid until August 31, 2016. (Id.) For unknown (Defs.’ Statement of Undisputed Facts, No. 9, Doc. 35-4 at 2; Pl.’s Amended Opposition to Statement of Undisputed Facts, No. 9, Doc. 59 at 3-4.)

3 On August 18, 2016, Correctional Counselor Wildes ordered Plaintiff to relocate to a cell with an inmate who also had a “lower bunk chrono,” forcing Plaintiff to sleep on an upper bunk in violation of his doctor’s prescription. (See Wheaten Decl., ¶¶ 11, 26, Doc. 58 at 19, 21.)

6 Plaintiff protested to Correctional Lieutenant Knoll and Correctional Counselor Capocciama, but neither altered Wilde’s order. (See id., ¶¶ 16, 18-20, 29-32, 34-35.) On August 24, 2016, “Medication Tech Ana Sharma rescinded [Plaintiff’s] lower bunk accommodation without [his] knowledge.” (Id., ¶ 36.) On August 27, 2016, as he was “attempting to climb down from the upper bunk [Plaintiff’s] leg got caught in [his] blanket and [he] fell,” injuring his elbow, knee, and lower back. (Id., ¶ 37.) Plaintiff was transferred to a hospital for emergency treatment. (Id., ¶ 38.)

13 Plaintiff brought suit on June 28, 2018. (Doc. 1.) Plaintiff’s operative claims are against Knoll, Capocciama, Wildes, and Health Services Administrator Gilliam for deliberate indifference to serious medical needs in violation of the Eighth Amendment. (See Doc. 15 at 1.)

16 II. LEGAL STANDARD 17 Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 21 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

27 Fed. R. Civ. P. 56(c)(1)(A), (B). When the non-moving party bears the burden of proof at trial, as support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 2 325); see also Fed. R. Civ. P. 56(c)(1)(B).

3 Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment … is satisfied.” Id. at 323.

10 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of a factual dispute, the opposing party may not rely upon the allegations or denials of his pleadings but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., that it might affect the outcome of the suit under governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., that the evidence is such that a reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250; Wool v. Tandem Computs. Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

24 To show a factual dispute, the opposing party need not prove a material fact conclusively in her favor. It is sufficient that the “factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see 1 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). But, it is still the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show … some metaphysical doubt as to the material facts….

8 Where the record taken as a whole could not lead a rational trier of fact to find for the non- moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).

10 III. DISCUSSION 11 Defendants argue that summary judgment is appropriate in this action because (1) Plaintiff fails to show that Defendants’ actions were the actual or proximate cause of his injuries, (2) based on the “special factors” analysis articulated in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Court should decline to extend the remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) to the “new context” at issue in this case, (3) Defendants are entitled to qualified immunity, and (4) Plaintiff fails to show that Defendants were deliberately indifferent to serious medical needs. (See Doc. 35-1 at 9-10.)

18 A. Plaintiff does not show that Defendants caused the constitutional deprivation of 19 which he complains 20 Though “not often discussed or explicitly stated in civil rights cases,” “causation … is an implicit requirement.” Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981)1. To state a claim under Bivens, a plaintiff must show a causal connection between the actions of the defendants and the constitutional deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976)). “A person subjects another to the deprivation of a constitutional right … if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the Many of the cases cited in this section address the standards for actions under 42 U.S.C. § 1983, which also apply to deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (internal quotation marks and citation omitted). Thus, to impose liability, Plaintiff must prove that (1) each defendant, “in acting or failing to act, was deliberately indifferent to the mandates of the eighth amendment and (2) this indifference was the actual and proximate cause of the deprivation of [his] eighth amendment right to be free from cruel and unusual punishment.” Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988).

7 The Court notes that deprivation of a constitutional right and “injury” are distinct concepts. For example, in Estate of Macias v. Ihde, the Ninth Circuit held that the constitutional deprivation suffered by the decedent was not her death, but rather the denial of equal police protection. 219 F.3d 1018, 1028 (9th Cir. 2000). In other words, the “injury” of death was distinct from the violation of Ms. Macias’ equal protection rights under the Fourteenth Amendment.

12 While the extent of the defendants’ responsibility for her death may be relevant to the amount of damages to which the plaintiffs were entitled, it is irrelevant to whether Ms. Macias was deprived of a constitutional right. See id. Similarly, in Carey v. Piphus, the Supreme Court held that the plaintiff may recover nominal damages for a due process violation even if he suffered no actual injury from his suspension from school. 435 U.S. 247, 266 (1978). Thus, the “injury” of the suspension was distinct from the violation of the plaintiff’s due process rights under the Fifth and Fourteenth Amendments; and, in the procedural due process context, no actual injury is required to impose liability. See id. 20 In the Eighth Amendment context, injury and constitutional deprivation are more closely aligned. The Eighth Amendment proscribes “the infliction of ‘cruel and unusual punishments’ on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97 (1991). A punishment is unconstitutionally excessive if it is “grossly out of proportion to the severity of the crime” or if it “involve[s] the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (citations omitted). Inherent in these formulations is some form of punishment, pain, or harm. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“officials’ conduct must constitute ‘unnecessary and wanton infliction of pain’ before it violates the Eighth Amendment”) requires “significant” or “serious” injury. The Supreme Court has specifically held that no such requirement exists. Hudson v. McMillian, 503 U.S. 1, 7-9 (1992). However, unlike in the procedural due process context, the plaintiff must suffer some type of pain or harm that is more than de minimis in order to implicate the Eighth Amendment. See id. at 9-10 (Eighth Amendment “excludes from constitutional recognition de minimis uses of physical force”); see also Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“delay of surgery, without more, is insufficient to state a clam of deliberate medical indifference … unless the denial was harmful”). And, as explained above, Plaintiff must show that the defendants’ deliberate indifference actually and proximately caused the pain or harm of which he complains. See Leer, 844 F.2d at 634; see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff must … demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”)

13 Plaintiff does not make that showing. Plaintiff contends that Defendants forced him to sleep in an upper bunk, in violation of his medical chrono for a lower bunk, which caused him to fall from his bed on August 27, 2016, and suffer injuries to his elbow, knee, and back. (Doc. 1 at 3-6.) However, in his sworn declaration, Plaintiff states, (1) Medication Tech Ana Sharma, who is not a defendant, rescinded Plaintiff’s lower bunk chrono on August 24, 2019, and (2) he fell after his leg got caught in a blanket as he was climbing down from his bunk. (See Wheaten Decl., ¶¶ 36-37, Doc. 58 at 22.) The latter fact shows that Plaintiff’s leg getting caught in a blanket was the cause-in-fact of his fall, not the medical condition to which Defendants were allegedly indifferent.

21 Furthermore, the withdrawal of Plaintiff’s chrono prior to his fall breaks the chain of proximate causation, i.e., his injury was no longer foreseeable on the part of the defendants, if it had been so before. See Arnold, 637 F.2d at 1355 (causation standard under Johnson, 588 F.2d at 743-44, “closely resembles the … ‘foreseeability’ formulation of proximate cause”). The crux of Plaintiff’s complaint is that Defendants ignored his lower bunk chrono, forcing him to sleep in an upper bunk, thus causing him to fall; however, a health care professional had already rescinded that chrono days earlier.2 Plaintiff contends that Ms. Sharma did not have the authority to discontinue his lower bunk accommodation, (Doc. 58 at 11); however, this is irrelevant to the matter of causation.

3 The facts, viewed in the light most favorable to Plaintiff, see Walls, 653 F.3d at 966, show that Defendants’ actions were not the actionable cause of the harm of which Plaintiff complains, i.e., his fall from his upper bunk and the injuries resulting therefrom. See Harper, 533 F.3d at 6 1026. In other words, the facts do not establish a causal connection between Defendants’ conduct and the Eighth Amendment deprivation Plaintiff allegedly suffered. See Rizzo, 423 U.S. at 373- 75. Because Plaintiff does not meet the causation requirement under Bivens, the Court need not address Defendants’ remaining arguments.

10 IV. CONCLUSION AND RECOMMENDATION 11 Based on the foregoing, the Court recommends that Defendants’ motion for summary judgment, (Doc. 35), be GRANTED and that this action be DISMISSED. These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these findings and recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

22 Dated: January 7, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE