Tommy Diaz v. Marc Avent

1 O

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Western Division TOMMY DIAZ, Case No. 5:16-cv-01861-CAS (SK) Plaintiff, ORDER ACCEPTING REPORT AND 13 RECOMMENDATION TO DENY DEFENDANT’S MOTION FOR 14 v. SUMMARY JUDGMENT MARC AVENT, 16 Defendant.

17 In accordance with 28 U.S.C. § 636, the Court has reviewed the Report and Recommendation (“R&R”) to deny defendant’s motion for summary judgment (dkt.

19 164), defendant’s objections to the R&R (dkt. 168), plaintiff’s reply to those objections (dkt. 170), and any pertinent records as needed. The Court has reviewed de novo those identifiable portions of the R&R to which defendant has timely objected, and it concludes that nothing in those objections refutes the material findings and conclusions in the R&R. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

25 At root, defendant’s objections amount to his preferred interpretation of genuinely disputed material facts, his untested claim to superior credibility over plaintiff’s, and his blinkered refusal to recognize the reasonable inferences from even the undisputed 1 In his objections, defendant specifically reiterates three points to argue that, as a matter of law, defendant did not act with deliberate indifference toward plaintiff’s hepatitis-C-related medical needs. First, he argues that undisputed evidence establishes that any delay in plaintiff’s anti-viral therapy treatment was not for a nonmedical reason. Dkt. 168 at 3. Second, he argues that the purported medical opinions of other medical personnel do not give rise to a genuine dispute of material fact. Id. at 6. Finally, he argues that the undisputed facts establish that defendant had a valid medical reason for delaying anti-viral therapy treatment. Id. at 9. None of these arguments are availing.

10 In support of his first argument, defendant points to evidence that he requested and authorized medical specialist visits, tests, and procedures for plaintiff, the cost of which exceeded $90,000. Id. at 4. According to defendant, this evidence definitively establishes that defendant did not deny plaintiff anti-viral therapy treatment on account of its costing $90,000. Id. But defendant overstates the import of this evidence. Plaintiff testified in his declaration that defendant denied his previously authorized anti-viral therapy, stating, “You are costing the state way too much money for your Hepatitis C treatment.” Dkt. 150 (“Diaz Decl.”) at 3. He further testified that, in denying him the treatment, defendant described himself as “not only a physician for CDCR” but also an “accountant” and “gatekeeper” charged with reducing “wasteful” inmate spending. Id. Viewing the record, including this evidence, in the light most favorable to plaintiff, a reasonable jury could conclude that defendant’s denial of treatment was motivated by nonmedical, financial concerns, notwithstanding the evidence that expenditures on other care received by plaintiff ultimately exceeded $90,000. And this conclusion could in turn support a reasonable finding that defendant acted with deliberate indifference toward plaintiff’s serious medical needs. See George v. Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 27 922, 937 (N.D. Cal. 2010) (“Evidence of an improper or ulterior motive can support a acted with a culpable state of mind.”).

2 Moreover, defendant’s objections fail to address the other ulterior motive plaintiff claims caused the delay in his anti-viral therapy treatment—that is, defendant’s personal animosity toward plaintiff. See dkt. 63 at 70, 116. Even if the evidence that plaintiff’s medical expenses exceeded $90,000 definitively establishes that the delay in his treatment was not caused by the nonmedical concern of financial costs, it in no way establishes that the delay was not caused by personal animosity.

8 See R&R at 14.

9 In making his second argument, defendant takes issue with the R&R’s discussion of how the delay of plaintiff’s anti-viral therapy treatment deviated from the recommendations and approaches of other physicians. Dkt. 168 at 6. He contends that this analysis is flawed because the other physicians “did not have the same medical facts or record available to them as [d]efendant at the time of the matters at issue.” Id. at 8. Contrary to defendant’s assertion, while variation in the medical facts available to the physicians could potentially support a finding that defendant exercised sound medical judgment under the circumstances, the impact of such variation remains a question of fact for the jury to decide. The R&R does not construe the other physicians’ statements as determinative that defendant showed deliberate indifference. Rather, it appropriately finds that this evidence creates a factual question regarding the appropriateness of care that cannot be decided on summary judgment as a matter of law. See R&R at 15-16.

22 Finally, defendant contends that the undisputed facts establish as a matter of law that he did not act with deliberate indifference because he had a medical reason for delaying plaintiff’s anti-viral therapy treatment. Dkt. 168 at 9. Specifically, he argues that “the record is clear that [d]efendant was concerned that the symptoms of which [p]laintiff complained could have indicated multiple myeloma.” Id. Contrary to defendant’s assertion, the evidence that defendant provided some medical care to constitutionally adequate care. See Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000) (explaining that a plaintiff “need not prove that he was completely denied medical care” to establish an Eighth Amendment violation). And plaintiff has set forth substantial evidence that defendant failed to provide needed treatment of and testing related to his hepatitis-C, despite plaintiff’s many complaints of extreme pain, which he attributed to his hepatitis-C. See R&R at 4-6. Furthermore, as plaintiff points out in his response to the objections, even if defendant delayed anti-viral therapy treatment in order to screen for myeloma, that does not explain why the delay lasted for nearly two years. Dkt. 170 at 10. Ultimately, it is the role of the jury to weigh this evidence against defendant’s evidence that he provided adequate care by delaying anti-viral therapy treatment to rule out myeloma. See Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir. 2007) (“We do not weigh the evidence but only determine whether there is a genuine issue for trial.”).

14 Defendant’s contention that he is entitled to qualified immunity likewise improperly relies on his preferred interpretation of disputed facts. As the R&R found, it is well settled law in the Ninth Circuit that a delay in providing necessary hepatitis-C treatment to patients in prison constitutes a violation of the Eighth Amendment. See Tatum v. Winslow, 122 F. App’x 309, 312 (9th Cir. 2005).

19 Defendant’s assertion that the delay was medically justified in this case rests on an interpretation of the evidence in the light most favorable to defendant. As explained above and in the R&R, interpreting the evidence in this manner is inappropriate at the summary judgment stage. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“[T]he inferences to be drawn from the underlying facts . .

24 . must be viewed in the light most favorable to the party opposing the motion.”)

25 (citation omitted).

26 With respect to defendant’s argument on harm, the Court declines in its discretion to consider arguments raised for the first time only in defendant’s || Likewise, the Court declines defendant’s invitation to “receive further evidence” in ||the form of “medical records that would definitively provide explanations to the || concerns raised by the Magistrate Judge.” (ECF 168 at 19). Defendant offers no || valid (much less credible) reason why he did not present such “definitive[]” evidence || when moving for summary judgment—as it was his legal burden, if not in his || litigation interests, to do. See Fed. R. Civ. P. 56(c)(1); Celotex Corp. v. Catrett, 477 ||U.S. 317, 323 (1986). Besides, if such records existed, defendant should have || produced that evidence to plaintiff during discovery rather than allude to it for the || first time in his objections to an unfavorable R&R. Objections to an R&R “are not a || vehicle for the losing party to relitigate its case.” Hagberg v. Astrue, 2009 WL 11 |/3386595, at *1 (D. Mont. Oct. 14, 2009).

12 In any event, requiring “a district court to consider evidence not previously || presented to the magistrate judge would effectively nullify the magistrate judge’s || consideration of the matter and would not help to relieve the workload of the district 15 court.” Howell, 231 F.3d at 622. “Equally important, requiring the district court to || hear evidence not previously presented to the magistrate judge might encourage ||sandbagging,” that is, letting litigants “wait to see which way the wind was blowing, 18 and—having received an unfavorable recommendation—shift gears before the district ||judge.” Jd. (cleaned up). Both these considerations cut decisively against || defendant’s misguided request for a summary judgment do-over.

21 THEREFORE, IT IS ORDERED THAT defendant’s motion for summary ||judgment be DENIED for the reasons stated in the R&R. IT IS FURTHER |} ORDERED THAT the referral of this matter to the assigned Magistrate Judge under || General Order 05-07 be VACATED.

25 IT IS SO ORDERED. Arte Plea f brgde || Dated: May 2 , 2023 _ 07 HON. CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE