Hardy v. 3 UNKNOWN AGENTS

690 F.Supp.2d 1074

Chester Leon HARDY, Plaintiff, v. 3 UNKNOWN AGENTS, et al., Defendants.

No. CV 05-4520-MMM (MAN).

United States District Court, C.D. California.

February 9, 2010.

Chester Leon Hardy, Ione, CA, pro se.

Albert Y. Muratsuchi, Elizabeth S. Angres, Mark V. Santa Romana, Terry A. Barak, Office of Attorney General of California, Los Angeles, CA, for Defendants.

ORDER ACCEPTING AND ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

MARGARET M. MORROW, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, all of the files and records herein, the Amended Report and Recommendation of United States Magistrate Judge, and the Objections filed by defendants. The time for filing Objections had passed and no Objections have been filed by plaintiff. The Court accepts and adopts the Magistrate Judge's Report and Recommendation, and the findings, conclusions, and recommendations therein.

IT IS ORDERED that:

The motion for summary judgment brought by the remaining defendants, Dr. Echendu and Dr. Fortaleza, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion"), is GRANTED, in part, and DENIED, in part, as follows:

a. The Motion is DENIED with respect to the Eighth Amendment claim alleged against Dr. Echendu based on plaintiff's alleged ear infection and hearing loss;

b. The Motion is GRANTED with respect to the Eighth Amendment claim alleged against Dr. Echendu based on plaintiff's psoriasis, and this claim is dismissed with prejudice;

c. The Motion is GRANTED with respect to all claims alleged against Dr. Fortaleza, and these claims are dismissed with prejudice; and

d. Dr. Fortaleza is granted summary judgment and is dismissed from this action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of the Order on plaintiff and on counsel for defendants.

CHESTER LEON HARDY, Plaintiff v. DR. NERIZZA ANDRADA, et al., Defendants.

AMENDED REPORT AND RECOMENDATION OF UNITED STATES MAGISTRATE JUDGE

MARGARET A. NAGLE, United States Magistrate Judge.

This Amended Report and Recommendation is submitted to the Honorable Margaret M. Morrow, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On July 26, 2005, plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Complaint"). On July 29, 2005, the Court issued an "Order re Civil Rights Case," directing plaintiff to refrain from serving the Complaint on the defendants until after the Court had screened it pursuant to the screening provisions of the Prison Litigation Reform Act of 1995 ("PLRA"). Plaintiff nevertheless served the Complaint on two defendants, Dr. Nerizza Andrada and Dr. Victor Laus. On August 25, 2005, these defendants filed an Answer. On September 20, 2005, the Court dismissed the Complaint, with leave to amend, pursuant to the PLRA.

On December 6, 2005, plaintiff filed a First Amended Complaint, naming as defendants Drs. Andrada, Laus, Echendu, Fortaleza, and Fitter. Plaintiff properly served the First Amended Complaint on counsel for Drs. Andrada and Laus. On December 20, 2005, Drs. Andrada and Laus filed a motion to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On June 19, 2006, the Court issued a Report and Recommendation ("June 19, 2006 Report and Recommendation"), recommending that the motion to dismiss be denied as to Dr. Andrada and granted as to Dr. Laus. In addition, the Court screened the First Amended Complaint, pursuant to the PLRA, with respect to plaintiffs claims against Drs. Echendu, Fortaleza, and Fitter, and recommended the dismissal of plaintiffs claims against Dr. Fitter. On July 28, 2006, District Judge Morrow adopted the recommendations set forth in the June 19, 2006 Report and Recommendation, dismissed the claims against Drs. Laus and Fitter without leave to amend, and granted plaintiff leave to file a Second Amended Complaint realleging his claims against Drs. Andrada, Echendu, and Fortaleza.

On August 22, 2006, plaintiff filed a Second Amended Complaint. On August 31, 2006, Dr. Andrada filed an Answer. On September 25, 2006, the Court directed the United States Marshal to serve the Second Amended Complaint on Drs. Echendu and Fortaleza.

On December 11, 2006, Drs. Echendu and Fortaleza (collectively "defendants") filed a motion to dismiss the claims against them pursuant to Rule 12(b) unenumerated and 12(b)(6) of the Federal Rules of Civil Procedure. On February 1, 2007, Dr. Andrada filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On May 8, 2007, plaintiff filed a Notice of Voluntary Dismissal of his claims against Dr. Andrada. On August 13, 2007, the Court issued a Report and Recommendation ("August 13, 2007 Report and Recommendation") recommending that: the motion to dismiss be denied as to Dr. Echendu, and granted in part and denied in part as to Dr. Fortaleza; and the action be dismissed as against Dr. Andrada. On November 15, 2007, District Judge Morrow entered an order adopting the recommendations set forth in the August 13, 2007 Report and Recommendation ("November 15, 2007 Order").

On December 21, 2007, defendants filed an Answer to the Second Amended Complaint. On July 28, 2008, defendants filed a motion for summary judgment, or summary adjudication of issues, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion"). The Motion was accompanied by declarations and other evidentiary material, a Statement of Uncontroverted Facts and Conclusions of Law, and a proposed judgment. On July 29, 2008, the Court issued an order setting a briefing schedule for the Motion, and advising plaintiff, in light of his pro se prisoner status, of the requirements for opposing a summary judgment motion. See Rand v. Rowland, 154 F.3d 952 (9th Cir.1998); Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988).

On November 24, 2008, plaintiff filed an opposition to the Motion ("Opposition"). Plaintiffs Opposition was accompanied by declarations and other evidentiary material and Plaintiffs Statement of Disputed Facts. On December 15, 2008, defendants filed a Reply to the Opposition and Evidentiary Objections. On January 7, 2009, plaintiff filed an opposition to Defendants' Evidentiary Objections.

On March 31, 2009, the Court issued a Report and Recommendation ("March 31, 2009 Report and Recommendation") recommending that the Motion be granted in part and denied in part. On April 21, 2009, Dr. Echendu filed objections to the March 31, 2009 Report and Recommendation ("Echendu Objections"). On April 23, 2009, plaintiff filed objections to the March 31, 2009 Report and Recommendation ("Hardy Objections").

On May 13, 2009, the Court issued a minute order ("May 13, 2009 Order"), directing supplemental briefing regarding plaintiffs retaliation claim against Dr. Fortaleza. On June 15, 2009, defendants filed a supplemental brief ("Def. Supp. Brief"). On July 13, 2009, plaintiff filed a supplemental opposition ("Supp. Opp."), accompanied by a supplemental declaration and evidentiary material. On August 5, 2009, defendants filed a supplemental reply ("Supp. Reply").

The Motion is submitted and ready for decision.

PLAINTIFF'S REMAINING CLAIMS

After the entry of the November 15, 2007 Order, the claims remaining in this action are Claim Three against Dr. Echendu and a portion of Claim Four against Dr. Fortaleza. More specifically, the remaining claims are as follows:

(1) Plaintiff's Eighth Amendment claim against Dr. Echendu based on allegations that Dr. Echendu: (a) failed to treat plaintiff's ear infection, causing a loss of hearing in one ear; and (b) failed to provide adequate treatment for plaintiffs psoriasis.

(2) Plaintiff's Eighth Amendment claim against Dr. Fortaleza based on allegations that Dr. Fortaleza acted upon a threat to withhold medical treatment from plaintiff by: (a) failing to renew plaintiffs psoriasis and blood pressure medications; (b) failing to refer him to a dermatologist for his psoriasis; and (c) refusing to place plaintiff on medically unassigned status because of his back pain;

(3) Plaintiff's First Amendment retaliation claim against Dr. Fortaleza based on allegations that Dr. Fortaleza withheld medical treatment from plaintiff, as described above, in retaliation for plaintiffs filing of grievances regarding his medical care.¹ (Second Amended Complaint at 3-5 8; August 13, 2007 Report and Recommendation at 17, 20-21; November 15, 2007 Order at 2.)

Plaintiff seeks damages. (Second Amended Complaint at 10.)

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate when the evidence demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Federal Rules of Civil Procedure, Rule 56(c). In a trio of 1986 cases, the Supreme Court clarified the applicable standards for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552; 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. However, the moving party need not disprove the other party's case. Id. at 323-24, 106 S.Ct. at 2553. The moving party need not produce admissible evidence showing the absence of a genuine issue of material fact when the non-moving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the non-moving part...