(PC) Wheaten v. Knoll

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 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

14 S. KNOLL, et al.,

(Doc. 35)

15 Defendants.

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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

19 9, 2019, to which Defendants replied. (Docs. 58-60.) For the reasons set forth below, the Court

20 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,

23 and buttocks. (Doc. 1 at 2.) Plaintiff contends that the staples on his buttocks were removed “too

24 early” post-surgery, causing the “wound to reopen prematurely and forc[ing] plaintiff to get

25 packing 3 to 4 times per week to stop excessive blood discharge and drainage.” (Id. at 3.) On

26 August 5, 2016, a doctor at Federal Correctional Institution, Mendota, provided Plaintiff with an

27 accommodation “chrono” for a lower bunk, valid until August 31, 2016. (Id.) For unknown

1 (Defs.’ Statement of Undisputed Facts, No. 9, Doc. 35-4 at 2; Pl.’s Amended Opposition to

2 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

4 with an inmate who also had a “lower bunk chrono,” forcing Plaintiff to sleep on an upper bunk

5 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

7 neither altered Wilde’s order. (See id., ¶¶ 16, 18-20, 29-32, 34-35.) On August 24, 2016,

8 “Medication Tech Ana Sharma rescinded [Plaintiff’s] lower bunk accommodation without [his]

9 knowledge.” (Id., ¶ 36.) On August 27, 2016, as he was “attempting to climb down from the

10 upper bunk [Plaintiff’s] leg got caught in [his] blanket and [he] fell,” injuring his elbow, knee,

11 and lower back. (Id., ¶ 37.) Plaintiff was transferred to a hospital for emergency treatment. (Id., ¶

12 38.)

13 Plaintiff brought suit on June 28, 2018. (Doc. 1.) Plaintiff’s operative claims are against

14 Knoll, Capocciama, Wildes, and Health Services Administrator Gilliam for deliberate

15 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

18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

19 Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of

20 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

22 party may accomplish this by “citing to particular parts of materials in the record, including

23 depositions, documents, electronically stored information, affidavits or declarations, stipulations

24 (including those made for purposes of the motion only), admissions, interrogatory answers, or

25 other materials,” or by showing that such materials “do not establish the absence or presence of a

26 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

1 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

4 sufficient to establish the existence of an element essential to that party’s case, and on which that

5 party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322. “[A] complete failure of

6 proof concerning an essential element of the nonmoving party’s case necessarily renders all other

7 facts immaterial.” Id. at 322–23. In such a circumstance, summary judgment should be granted,

8 “so long as whatever is before the district court demonstrates that the standard for the entry of

9 summary judgment … is satisfied.” Id. at 323.

10 If the moving party meets its initial responsibility, the burden then shifts to the opposing

11 party to establish that a genuine issue as to any material fact does exist. See Matsushita Elec.

12 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the

13 existence of a factual dispute, the opposing party may not rely upon the allegations or denials of

14 his pleadings but is required to tender evidence of specific facts in the form of affidavits or

15 admissible discovery material in support of its contention. See Fed. R. Civ. P. 56(c)(1);

16 Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.

17 2002) (“A trial court can only consider admissible evidence in ruling on a motion for summary

18 judgment.”). The opposing party must demonstrate that the fact in contention is material, i.e., that

19 it might affect the outcome of the suit under governing law, see Anderson v. Liberty Lobby, Inc.,

20 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

21 630 (9th Cir. 1987), and that the dispute is genuine, i.e., that the evidence is such that a

22 reasonable jury could return a verdict for the non-moving party, see Anderson, 477 U.S. at 250;

23 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

25 in her favor. It is sufficient that the “factual dispute be shown to require a jury or judge to resolve

26 the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the

27 “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

2 court draws “all inferences supported by the evidence in favor of the non-moving party.” Walls v.

3 Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). But, it is still the

4 opposing party’s obligation to produce a factual predicate from which the inference may be

5 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985),

6 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing

7 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-

9 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

12 fails to show that Defendants’ actions were the actual or proximate cause of his injuries, (2) based

13 on the “special factors” analysis articulated in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Court

14 should decline to extend the remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau

15 of Narcotics, 403 U.S. 388 (1971) to the “new context” at issue in this case, (3) Defendants are

16 entitled to qualified immunity, and (4) Plaintiff fails to show that Defendants were deliberately

17 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

21 implicit requirement.” Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir.

22 1981)1. To state a claim under Bivens, a plaintiff must show a causal connection between the

23 actions of the defendants and the constitutional deprivation alleged to have been suffered by the

24 plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976)). “A person subjects another to the

25 deprivation of a constitutional right … if he does an affirmative act, participates in another’s

26 affirmative acts, or omits to perform an act which he is legally required to do that causes the

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1 Many of the cases cited in this section address the standards for actions under 42 U.S.C. § 1983, which also apply to

1 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)

2 (internal quotation marks and citation omitted). Thus, to impose liability, Plaintiff must prove that

3 (1) each defendant, “in acting or failing to act, was deliberately indifferent to the mandates of the

4 eighth amendment and (2) this indifference was the actual and proximate cause of the deprivation

5 of [his] eighth amendment right to be free from cruel and unusual punishment.” Leer v. Murphy,

6 844 F.2d 628, 634 (9th Cir. 1988).

7 The Court notes that deprivation of a constitutional right and “injury” are distinct

8 concepts. For example, in Estate of Macias v. Ihde, the Ninth Circuit held that the constitutional

9 deprivation suffered by the decedent was not her death, but rather the denial of equal police

10 protection. 219 F.3d 1018, 1028 (9th Cir. 2000). In other words, the “injury” of death was distinct

11 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

13 damages to which the plaintiffs were entitled, it is irrelevant to whether Ms. Macias was deprived

14 of a constitutional right. See id. Similarly, in Carey v. Piphus, the Supreme Court held that the

15 plaintiff may recover nominal damages for a due process violation even if he suffered no actual

16 injury from his suspension from school. 435 U.S. 247, 266 (1978). Thus, the “injury” of the

17 suspension was distinct from the violation of the plaintiff’s due process rights under the Fifth and

18 Fourteenth Amendments; and, in the procedural due process context, no actual injury is required

19 to impose liability. See id.

20 In the Eighth Amendment context, injury and constitutional deprivation are more closely

21 aligned. The Eighth Amendment proscribes “the infliction of ‘cruel and unusual punishments’ on

22 those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 296–97 (1991). A punishment is

23 unconstitutionally excessive if it is “grossly out of proportion to the severity of the crime” or if it

24 “involve[s] the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173

25 (1976) (citations omitted). Inherent in these formulations is some form of punishment, pain, or

26 harm. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) (“officials’ conduct must

27 constitute ‘unnecessary and wanton infliction of pain’ before it violates the Eighth Amendment”)

1 requires “significant” or “serious” injury. The Supreme Court has specifically held that no such

2 requirement exists. Hudson v. McMillian, 503 U.S. 1, 7-9 (1992). However, unlike in the

3 procedural due process context, the plaintiff must suffer some type of pain or harm that is more

4 than de minimis in order to implicate the Eighth Amendment. See id. at 9-10 (Eighth Amendment

5 “excludes from constitutional recognition de minimis uses of physical force”); see also Shapley v.

6 Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“delay of surgery,

7 without more, is insufficient to state a clam of deliberate medical indifference … unless the denial

8 was harmful”). And, as explained above, Plaintiff must show that the defendants’ deliberate

9 indifference actually and proximately caused the pain or harm of which he complains. See Leer,

10 844 F.2d at 634; see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In

11 a § 1983 action, the plaintiff must … demonstrate that the defendant’s conduct was the actionable

12 cause of the claimed injury.”)

13 Plaintiff does not make that showing. Plaintiff contends that Defendants forced him to

14 sleep in an upper bunk, in violation of his medical chrono for a lower bunk, which caused him to

15 fall from his bed on August 27, 2016, and suffer injuries to his elbow, knee, and back. (Doc. 1 at

16 3-6.) However, in his sworn declaration, Plaintiff states, (1) Medication Tech Ana Sharma, who is

17 not a defendant, rescinded Plaintiff’s lower bunk chrono on August 24, 2019, and (2) he fell after

18 his leg got caught in a blanket as he was climbing down from his bunk. (See Wheaten Decl., ¶¶

19 36-37, Doc. 58 at 22.) The latter fact shows that Plaintiff’s leg getting caught in a blanket was the

20 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

22 causation, i.e., his injury was no longer foreseeable on the part of the defendants, if it had been so

23 before. See Arnold, 637 F.2d at 1355 (causation standard under Johnson, 588 F.2d at 743-44,

24 “closely resembles the … ‘foreseeability’ formulation of proximate cause”). The crux of

25 Plaintiff’s complaint is that Defendants ignored his lower bunk chrono, forcing him to sleep in an

26 upper bunk, thus causing him to fall; however, a health care professional had already rescinded

27 that chrono days earlier.2 Plaintiff contends that Ms. Sharma did not have the authority to

1 discontinue his lower bunk accommodation, (Doc. 58 at 11); however, this is irrelevant to the

2 matter of causation.

3 The facts, viewed in the light most favorable to Plaintiff, see Walls, 653 F.3d at 966, show

4 that Defendants’ actions were not the actionable cause of the harm of which Plaintiff complains,

5 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

7 and the Eighth Amendment deprivation Plaintiff allegedly suffered. See Rizzo, 423 U.S. at 373-

8 75. Because Plaintiff does not meet the causation requirement under Bivens, the Court need not

9 address Defendants’ remaining arguments.

10 IV. CONCLUSION AND RECOMMENDATION

11 Based on the foregoing, the Court recommends that Defendants’ motion for summary

12 judgment, (Doc. 35), be GRANTED and that this action be DISMISSED. These findings and

13 recommendations will be submitted to the United States District Judge assigned to this case,

14 pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these

15 findings and recommendations, Plaintiff may file written objections with the Court. The

16 document should be captioned, “Objections to Magistrate Judge’s Findings and

17 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

18 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

19 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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22 Dated: January 7, 2020 /s/ Jennifer L. Thurston

UNITED STATES MAGISTRATE JUDGE

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