Garcia v. United States

ISRAEL GARCIA, JR., Plaintiff, v. The UNITED STATES OF AMERICA, Defendant.

No. 3:18-cv-00176-HZ

United States District Court, D. Oregon

April 12, 2022

ISRAEL GARCIA, JR. USP VICTORVILLE PLAINTIFF PRO SE

SCOTT ERIK ASPHAUG UNITED STATES ATTORNEY JARED HAGER ASSISTANT UNITED STATES ATTORNEY DISTRICT OF OREGON ATTORNEYS FOR DEFENDANT

OPINION & ORDER

MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

Pro se Plaintiff Israel Garcia, Jr., brings this action against Defendants the United States of America, the United States Bureau of Prisons (“BOP”), and several individuals for claims arising from his medical treatment while incarcerated at Federal Correctional Institution Sheridan (“FCI Sheridan”) and Federal Correctional Institution Talladega (“FCI Talladega”). On October 25, 2020, this Court granted Defendants' motion to dismiss Plaintiff's Bivens claims [111]. The Court also dismissed Plaintiff's claims under the Federal Tort Claims Act (“FTCA”) arising from his treatment at FCI Talladega, leaving Plaintiff's FTCA claims against the United States arising from his medical care at FCI Sheridan as the only remaining claims. Defendant the United States now moves for summary judgment on Plaintiff's remaining FTCA claims. For the reasons discussed below, the Court grants in part and denies in part Defendant's motion for summary judgment.

BACKGROUND

Plaintiff Israel Garcia, Jr. was incarcerated at FCI Sheridan in Oregon from December 18, 2013, until he was transferred to FCI Talladega in Alabama on April 15, 2016. Def. Mot. 3. On December 26, 2017, Plaintiff was transferred to FCI Victorville in California, where he currently resides. Id.

On December 19, 2015, when he was incarcerated at FCI Sheridan Plaintiff experienced lower abdominal pain and vomiting. Am Compl. ¶ 17. He was seen by registered nurse Kristina Behrens (“RN Behrens”), who noted in Plaintiff's medical record that he was “complaining of umbilical and suprapubic abdominal discomfort.” Grasley Decl. Ex. 4, ECF 125-4. RN Behrens reported that Plaintiff described the abdominal pain as a constant ache denied right-sided abdominal pain, and reported vomiting twice. Id. RN Behrens noted that Plaintiff's physical exam showed a soft abdomen without rigidity and normal bowel sounds. Id. She consulted the on-call nurse practitioner and gave Plaintiff injections of medications for pain and nausea. Id. She also instructed Plaintiff to follow-up as needed and to “return immediately if condition worsens.” Id. Dr. Andrew Grasley, clinical director at FCI Sheridan, signed the treatment record but did not see Plaintiff at that time. Id.

Plaintiff saw RN Behrens again the following day, December 20, 2015, because of recurrent abdominal pain. Grasley Decl. Ex. 5, ECF 125-5. At that time, Plaintiff's pain had moved from midline abdomen to the right side but was less severe than the day before. Id. RN Behrens reported that Plaintiff did not have nausea or vomiting at that time. Id. Plaintiff reported his pain as 8 out of 10 on December 19, 2015, and 6 out of 10 on December 20, 2015. Behrens Decl. ¶ 17. RN Behrens again consulted the nurse practitioner on call and administered pain medication. Grasley Decl. Ex. 5.

Plaintiff alleges that on December 22, 2015, he “was in a lot of pain and couldn't lay down because of the excruciating pain, ” but he was not seen by medical staff. Am. Compl. ¶ 22. He states that he continued to be “in a lot of pain on and off for about 11 months” and “took all kinds of pain pills” during that time. Id. Plaintiff did not seek further medical evaluation or treatment during the remaining time he was at Sheridan FCI. Def. Mot. 7.

On November 15, 2016, seven months after he was transferred to FCI Talladega, Plaintiff was seen by medical staff for severe abdominal pain. Am. Compl. ¶ 24. Plaintiff continued to have abdominal pain over the next several days, and on November 22, 2016, he developed fever, chills, and increased abdominal pain. Id. ¶¶ 26-32. He was sent to a local hospital where diagnostic imaging showed that his appendix had ruptured. Id. ¶ 32. He underwent emergency surgery on that day. Id. He then had a second surgery on November 29, 2016, to remove part of his intestines and colon. Id. ¶ 34.

Plaintiff filed this action on January 26, 2018, bringing claims against individual Defendants at FCI Sheridan pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Plaintiff filed an Amended Complaint on April 22, 2018, in which he raised new claims related to the medical treatment he received at FCI Talladega and added FTCA claims against the United States. This Court granted Defendants' motion to dismiss all claims except the FTCA claims related to Plaintiff's medical treatment at FCI Sheridan. Plaintiff asserts claims against the United States under the FTCA for intentional infliction of emotional distress (“IIED”) and medical negligence. Defendant moves for summary judgment on those claims.

Before moving for summary judgment, the Defendant served written discovery requests on Plaintiff, including requests for admission and interrogatories. Hager Decl. ¶ 2. Plaintiff did not respond to Defendant's request. Id. ¶ 4. Defendant filed its motion for summary judgment on September 20, 2021, and the Court set October 12, 2021, as the deadline for Plaintiff to respond. On January 18, 2022, Plaintiff filed a motion for extension of time to respond. The Court granted an extension until March 7, 2022. Plaintiff did not file a response by the new deadline. Therefore, the Court rules on Defendant's motion without having received a response from Plaintiff.

STANDARDS

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)).

Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present “specific facts” showing a “genuine issue for trial.” Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex, 477 U.S. at 324).

The substantive law governing a claim determines whether a fact is material. Suever v.Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Rsch., Inc., 658 F.3d 1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support its claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

Defendant argues that it should be granted summary judgment on Plaintiff's IIED claim because the Court does not have subject matter jurisdiction over that claim under the FTCA. Defendant asserts that it is entitled to summary judgment on Plaintiff's medical negligence claim because Plaintiff presents no evidence establishing that FCI Sheridan medical staff breached the applicable standard of care under Oregon law, Plaintiff cannot establish causation, and Plaintiff is more than 50% responsible for his injuries.

I. Plaintiff's Failure to Respond to the Motion or Discovery Requests

Plaintiff failed to respond to Defendant's written discovery requests and did not file a response to Defendant's motion for summary judgment. Nevertheless, the burden remains on Defendant to show why summary judgment is warranted. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (“Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded' for want of opposition.”). Thus, a court cannot grant a defendant's motion for summary judgment solely because the plaintiff failed to respond. Heinemann v. Satterberg, 731 F.3d 914, 917-18 (9th Cir. 2013).

But while the Court cannot grant summary judgment by default, under Federal Rule of Civil Procedure 56(e)(2), Plaintiff's “failure to respond to a fact asserted in the motion permits a court to consider the fact undisputed for the purposes of the motion.” Heinemann, 731 F.3d at 917 (quoting Fed.R.Civ.P. 56(e)(2)). As evidence to support its motion, Defendant presents Plaintiff's medical treatment records and declarations of RN Behrens and Dr. Grasley. See Behrens Decl., ECF 124; Grasley Decl., ECF 125. The only evidence Plaintiff presents, other than the allegations in his Complaint, is a letter from Dr. Michael Flores, M.D., attached to his Amended Complaint, to which Defendant does not object. Am. Compl., Ex. A.^[1]

II. Claims under the FTCA

“A party may bring an action against the United States only to the extent that the government waives its sovereign immunity.” Valdez v. United States, 56 F.3d 1177, 1179 (9^th Cir. 1995).

The government has waived its sovereign immunity under the Federal Tort Claims Act (FTCA) for claims “arising out of the negligent conduct of government employees acting within the scope of their employment.” Soldano v United States, 453 F.3d 1140, 1145 (9th Cir. ...