Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Lynn C. Atkinson, Judge, No. 05 C 0440
Joshua Shebby, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Alberto L. Gonzalez and James C. Phillips, Deputy Attorneys General, for Defendants and Respondents.
OPINION
Wiseman, Acting P.J.
Plaintiff Joshua Shebby, a state prisoner, developed and had surgery for a tumor in his brain. Representing himself, he sued two prison doctors and a prison administrator, claiming they were negligent in failing to discover and treat his condition sooner. His complaint also alleged that he was denied access to a Native American spiritual advisor; that he was shackled to his hospital bed by an injured ankle; that his family was not notified of his condition; and that prison staff failed to give him his medications after the surgery. The trial court granted defendants’ motion for summary judgment, mainly on the ground that Shebby had produced no evidence of an expert opinion that his medical treatment was negligent. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
On March 30, 2005, the California Victim Compensation and Government Claims Board received a tort claim form from Shebby alleging that prison doctors had failed to determine in a timely manner the cause of his severe headaches, which turned out to be caused by a tumor. Shebby checked boxes on the form stating that the incident happened more than six months ago and that he had attached a separate sheet explaining why his filing was late.
In their papers on the motion for summary judgment, the parties agreed that Shebby presented the tort claim form to the Board two days earlier, on March 28, 2005.
In an attachment to the form, Shebby stated that on August 24, 2000, he told a doctor at Salinas Valley State Prison that he was suffering from headaches. He reported the headaches next to Neil Hirsch, M.D., at the California Correctional Institution in Tehachapi on August 13, 2001. He told Hirsch he had been having the headaches weekly for years and that each one lasted hours. When Shebby asked if the headaches could be caused by a tumor, Hirsch allegedly said, “it’s nothing,” and prescribed Motrin or Tylenol. Shebby asked to be seen by a doctor again for headaches on April 15, 2002. No testing was ordered on any of these occasions to determine the cause of the headaches.
On September 3, 2004, Shebby alleged that he reported double vision to a prison doctor at the Substance Abuse Treatment Facility in Corcoran. The doctor referred him for an M.R.I. scan, which took place on September 22, 2004. The scan found a brain tumor. Shebby alleged that prison staff failed to notify his family of his condition. Finally, Shebby alleged that he had not been receiving prescribed medications since January 11, 2005. He stated that he did not file his claim sooner because he was incapacitated by brain surgery and radiation therapy. In a letter dated June 21, 2005, the Victim Compensation and Government Claims Board notified Shebby that it had rejected his claim.
Shebby filed a complaint in Kings County Superior Court on September 19, 2005, claiming medical malpractice and general negligence. As defendants, it named Dr. Hirsch, J. Klarich, M.D., Gail Martinez, and Does 1 through 3. The complaint stated that Klarich was Chief Medical Officer of Corcoran State Prison and Martinez was Correctional Heath Services Administrator II at the Substance Abuse Treatment Facility. In a letter to the court, Shebby later wrote that Klarich had died and the new Chief Medical Officer was Perlita McGuinness, M.D. McGuinness answered the complaint. Her name appears in subsequent pleadings and she stated in a declaration that she became Chief Medical Officer at the Substance Abuse Treatment Facility on June 1, 2005.
The complaint repeated the allegations made in the tort claim form. It added that Shebby was admitted to Catholic Healthcare West Mercy Hospital in Bakersfield on October 5, 2004, and underwent brain surgery there for a pituitary tumor on October 11, 2004. Shebby’s family came to visit him at Corcoran on October 9, 2004; they were told Shebby was at the hospital, but not given any information about his condition. Shebby was not allowed to use the telephone or receive mail while in the hospital, but was allowed to send letters. The complaint further alleged that Shebby was denied access to a Native American spiritual advisor while in the hospital and was shackled to the bed by his injured left ankle, in violation of his constitutional rights. After Shebby went back to Corcoran on October 18, 2004, prison staff allegedly failed to timely schedule his return to the hospital for staple removal and failed to give him medications.
Shebby repeated his allegations in a document titled “Memorandum in Support of Civil Claim, Points and Authority,” which he filed along with his complaint. He added that, in spite of his request to speak with a Native American spiritual advisor, a chaplain at the hospital attempted to convert him to Catholicism.
The complaint prayed for compensatory and punitive damages and stated that the amount of damages was $28,000. In a case-management statement filed later, he claimed he had suffered memory loss, weakness in his right arm and leg, and nerve damage affecting his right eye and ear. He alleged that his future medical costs would be over $500,000.
Defendants Hirsch, McGuinness, and Martinez filed a motion for summary judgment on May 3, 2007. Citing Hirsch’s declaration, they contended that Shebby could not prove negligence on Hirsch’s part because Shebby reported a headache to Hirsch on only one occasion and this, even combined with a previous report of a headache to another doctor, would not prompt a reasonable doctor to order testing for a tumor. “Tension headaches are understandably quite common with prisoners,” Hirsch declared.
Defendants also asserted that Shebby’s claim against Hirsch was barred because he filed his government tort claim too late. Shebby’s claim accrued either on August 13, 2001, when he reported a headache to Hirsch, or on September 22, 2004, when he received M.R.I. results showing the tumor. Government Code section 911.2, subdivision (a), required Shebby to file a tort claim within six months of the claim’s accrual, so even if the later date applied, he had to file the claim by March 21, 2005. In fact, he filed it on March 28, 2005. When the Victim Compensation and Government Claims Board accepted his claim for consideration, it notified Shebby that it did so only for the six-month period preceding its filing. Shebby did not respond by filing a petition for leave to file a late claim. If the earlier date applied, Shebby’s claim against Hirsch was also barred by the three-year statute of limitations.
Defendants argued that Shebby could not show any liability on the part of McGuinness or Martinez because there was no evidence of their personal involvement in any acts or omissions leading to Shebby’s injuries. The California Tort Claims Act bars vicarious liability for supervisors. Shebby therefore could not prevail on his claims of improper shackling, denial of religious services, failure to provide medications, failure to schedule staple removal, and failure to inform Shebby’s family of his condition. All these claims presumably were directed against McGuinness or Martinez as supervisors.
Responding to a claim Shebby made in his deposition that Martinez was liable for his lack of access to a Native American spiritual advisor because she was responsible for the prison’s contract with the hospital, Martinez declared that she did not negotiate that contract. Further, she had no involvement with the provision of religious services at the hospital. Shebby also could not prevail on his claim of denial of religious services because his complaint sought only damages and this constitutional claim does not include a remedy for damages. Further, the claim of improper shackling was barred because Shebby did not mention it in his government tort claim. He could not recover for emotional distress suffered by his family members arising from a failure to notify them of his condition because he had no right to advance that claim as a third party acting on their behalf.
Defendants’ motion was scheduled to be heard on July 24, 2007. On July 16, 2007, Shebby filed a request to continue the hearing for 30 days. He explained that his legal papers had been taken from him when he was moved to Kern Valley State Prison and not returned to him for several weeks, preventing him from preparing his opposition to the motion. The court granted the request, rescheduling the hearing for August 27, 2007. On August 21, 2007, Shebby filed a request for a second 30-day continuance. He stated that his opposition was complete but he had not been permitted to make copies of it. The prison law library, which was the only place where prisoners could make copies, had been closed since August 1, 2007. The court granted the request and continued the hearing to September 28, 2007.
Shebby filed his opposition on August 27, 2007. Citing his own declaration, he disputed defendants’ description of his reports of headaches; he said he reported chronic, severe headaches. He also declared that Hirsch refused to give him crutches when he had a broken ankle.
On the issue of the timeliness of his government tort claim, Shebby declared that he was first told on September 22, 2004, that the M.R.I. scan showed he might have a tumor and would have to see a neurologist. On September 30, 2004, he saw Dr. Michael Baker who said the M.R.I. results appeared to show a pituitary tumor behind the right eye and the diagnosis would have to be verified. Shebby went to the hospital on October 5, 2004, where Dr. Mahmoud Rashidi confirmed the diagnosis and determined that surgery was necessary. Therefore, the six-month time limit for filing a government tort claim began running on September 30 or October 5, 2004, and Shebby’s filing on March 28, 2005, was timely. Shebby also argued that the time limit should have been equitably tolled while he was in the hospital, where he was physically incapacitated and had no access to legal materials.
Shebby stated that he wished to dismiss defendant McGuinness. With respect to defendant Martinez, he argued that she should be subject to liability because she had “a duty to make sure staff [are] properly train[ed] and all medical polic[ies] are followed” and because she “ruled over my medical treatment and[/]or participate[d] in decisions that [a]ffected my medical care.” He also stated in his declaration—without further explanation or support—that “[d]efendant Gail Martinez had made medical decisions that directly [a]ffected my medical treatment.”
In addition, Shebby argued that he was not seeking relief for third parties via his claim that his relatives were not notified of his condition; rather, his claim was that he suffered emotional distress himself when they were not notified. Citing case law, Shebby disputed defendants’ claim that there is no damages remedy for an unconstitutional denial of religious liberty.
In his opposition, Shebby also wrote that he had learned that Dr. Kim Nguyen was the person responsible for informing his family about his condition. He expressed his “hope” to amend the complaint accordingly. Shebby also wrote in his opposition that he “brings action” against three correctional officers whom he had identified as those responsible for shackling his injured ankle when he was in the hospital. He stated that he also “brings action” against Medical Technical Assistant Robert Hernandez for failing to give him his medications and that he “alleges that Associate Warden D. [Fuchs] is [responsible] for the denial of Native Religious services” at the Substance Abuse Treatment Facility.
Finally, Shebby’s opposition “[gave] notice” to the court that he had “been unable to obtain much needed additional affidavits from witnesses” because he recently had been transferred to Kern Valley State Prison and placed in the administrative segregation unit. He “hope[d]” to present Dr. Baker’s affidavit stating that the diagnosis of a pituitary tumor was in need of confirmation after it was first suspected. He “would also submit” affidavits by inmates at the Substance Abuse Treatment Facility who had been denied Native American religious services.
Defendants filed a reply brief on September 13, 2007. Among other things, they argued that summary judgment must be granted on Shebby’s claim of medical malpractice because he did not come forward with expert testimony to show negligence.
Defense counsel appeared for the summary judgment hearing on September 28, 2007. Shebby did not appear and the court noted that no telephonic appearances were scheduled for that morning. Defense counsel submitted the matter on the papers and the court took it under submission.
The court issued its order granting summary judgment for defendants on October 16, 2007. It ruled that the evidence, including the description in Shebby’s declaration of his report or reports of headaches, did not raise a triable issue of fact regarding Hirsch’s alleged negligence. To defeat the motion for summary judgment on the issue of medical negligence, Shebby would have needed to submit an expert opinion supporting his claim. He did not.
The court ruled that Shebby had conceded his case against McGuinness and that in any event McGuinness “did not treat plaintiff and there is no respondeat liability of a doctor for another doctor’s actions.” It ruled that Shebby had presented no “evidence raising a triable issue of fact that acts or omissions by Ms. Martinez were a violation of plaintiff’s rights or caused him injury.” The court sustained defendants’ objection to the unsupported assertion in Shebby’s declaration that Martinez made medical decisions that affected his treatment. It did not address defendants’ arguments on the timeliness of Shebby’s government tort claim or the statute of limitations.
DISCUSSION
We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) We view the facts in the light most favorable to the nonmoving party and assume that, for purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.)
I. Shebby’s nonappearance at the summary judgment hearing
As a threshold matter, Shebby claims the trial court should not have heard defendants’ motion for summary judgment because Shebby did not appear at the hearing. While acknowledging that he was informed of the date and time of the hearing and told he could appear by telephone, Shebby says that when the time arrived, the “trial court failed to contact” him to initiate a telephonic appearance and that no effort “was made by the court or defense to have Plaintiff appear.” Shebby’s view is mistaken. Plaintiffs, including self-represented plaintiffs and incarcerated plaintiffs, are responsible for ensuring their own appearances at court proceedings. Apart from giving notice of the hearing, the court and defendants had no duty to help Shebby make an appearance.
II. Defendant Hirsch
On the central issue in the case—the alleged medical malpractice by Dr. Hirsch—we agree with the trial court’s view that, without an expert opinion, Shebby could not prove Hirsch was negligent in not ordering testing for a brain tumor. In medical and other professional negligence cases, the questions of what the standard of care is and whether certain actions satisfied it are peculiarly within the knowledge of experts. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.) An exception exists for those circumstances in which a layperson can say as a matter of common knowledge that the injury would not have happened if due care had been exercised. (Ibid.) In all cases falling outside this exception, a plaintiff cannot establish a prima facie case of professional negligence without presenting an expert opinion. (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702.) In this case, for purposes of summary judgment, the question was this: Assuming Shebby reported headaches to Hirsch in the manner Shebby claims he reported them, was a doctor exercising due care required to order testing, such as an M.R.I. scan, to determine the cause? This is not a question a layperson can answer from common knowledge. Shebby therefore was required to present an expert opinion to raise a triable issue of fact about Hirsch’s alleged negligence.
Shebby argues that he should have been given more time before the court ruled on the motion and that he would have presented testimony by a physician, Dr. Baker, at trial. A party opposing a summary judgment motion and needing more time to obtain evidence may file an ex parte application for a continuance of the motion at any time on or before the due date for the opposition papers. (Code Civ. Proc., § 437c, subd. (h).) Shebby never made this effort. He requested and received two continuances for other reasons; after the second continuance was granted, Shebby filed his opposition without asking for a third. Citing Federal Rule of Civil Procedure 56(f), Shebby’s opposition gave the court “notice” that he had been unable to obtain certain affidavits, but did not ask the court for any type of relief on this basis.
Further, if Shebby had sought a third continuance on this ground, or if the court had considered this on its own motion, the court nevertheless could properly have decided not to grant a continuance. The rule is, “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment … that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained .…” (Code Civ. Proc., § 437c, subd. (h).) There is nothing in the record that would have suggested to the trial court that Shebby had any prospect of obtaining an expert medical opinion in support of his claim, no matter how much time he was given. Shebby mentioned Dr. Baker, but there was no indication of what Dr. Baker’s opinion was, if any, or of whether he was available and willing to render an opinion relevant to the issue of Hirsch’s alleged negligence. To the contrary, Shebby only stated: “I hope to present affidavits from Dr. Baker stating that he explain[ed] the diagnosis of a pituitary tumor and the need to have it confirmed and treated.” Such an affidavit might have been relevant to the issue of the timeliness of Shebby’s government tort claim, since it would tend to show that Shebby could not be sure about his condition when the M.R.I. results were first disclosed to him. It would not help to show professional negligence.
Shebby argues that the court should have appointed an expert witness for him and claims he asked it to appoint one. His record citation for the latter claim is a page of a “motion to vacate judgment” that he filed on December 5, 2007. There is no request for a court-appointed expert on that page or anywhere else in the motion. Further, the court was under no obligation to appoint an expert witness to support Shebby’s case. Shebby asks rhetorically: “If [a] triable issue rest[s] on the [opinion] of [an] expert witness[,] how can [the] Superior Court dismiss plaintiff[’]s claim without appointing said expert .…”? It is not the superior court’s job to ensure that a civil plaintiff—even an indigent and incarcerated plaintiff—has what he needs to prevail in litigation. In our system, an individual wishing to sue another individual is expected to marshal the resources needed to do it; if he cannot, the state will not come to his aid to ensure that his claims can succeed.
In addition, Shebby argues that the court should not have ruled against him on the ground that he had no expert testimony because the court never ordered him to submit expert testimony. The court was not required to inform Shebby of the evidence necessary to defeat the summary judgment motion. Like any other litigant, Shebby bore responsibility for knowing what the law required of him.
The complaint contained no allegations against Hirsch other than the claim of medical malpractice related to the tumor. There was no allegation or evidence that Hirsch had anything to do with the shackling, lack of access to religious services, failure to notify family members, failure to dispense medications, or the missed medical appointment. The court did not err in granting summary judgment in favor of Hirsch.
III. Defendants Martinez and McGuinness
Shebby presented no evidence that defendant Martinez had any personal involvement in any of the actions or omissions alleged to have injured him. The California Tort Claims Act bars vicarious liability for supervisors, so Martinez cannot be held liable in this lawsuit for actions of subordinates absent evidence that those actions were caused by Martinez’s own negligent action or omission. (Gov. Code, § 820.8; Weaver v. State of California (1998) 63 Cal.App.4th 188, 202-203.) Shebby presented no such evidence. The court did not err in granting summary judgment with respect to Martinez.
“Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” (Gov. Code, § 820.8.)
Martinez’s declaration states that her job duties include “contract management,” and Shebby said during his deposition that he believed Martinez was liable for the lack of Native American religious services at the hospital in Bakersfield because she must have been involved in making the prison’s contract with the hospital. The only evidence in the record dealing specifically with that contract, however, is this statement in Martinez’s declaration: “I did not negotiate any contractual relationship with Mercy Hospital in Bakersfield and have no involvement in the provision of religious or spiritual services at any non-California Department of Corrections & Rehabilitation hospitals.” Shebby therefore has not borne his burden of producing evidence giving rise to a triable issue of fact on this point.
Shebby also says the prison staff’s failure to dispense his medications must have been caused by a negligent failure on Martinez’s part to make sure the prison pharmacy was properly stocked. He presented no evidence to support this claim, however. There are many possible causes for the alleged failure to dispense medications other than negligence on the part of Martinez. Again, Shebby has not borne his burden.
With respect to defendant McGuinness, we agree with the trial court’s view that Shebby has conceded he can present no evidence to show her liability on any of his claims. Shebby never formally moved to dismiss McGuinness, but the statements in his opposition papers of his intent to dismiss her show that he elected not to oppose the motion with respect to her. The court therefore properly granted summary judgment in her favor.
IV. Proposed amended complaint
In his motion papers, Shebby discussed issues not raised and persons not named in his complaint. The persons included three correctional officers claimed to be responsible for shackling Shebby to his hospital bed; a medical technical assistant said to be responsible for dispensing medications; an associate warden; and Dr. Nguyen. Shebby claims the associate warden was responsible for the lack of Native American religious services at the Substance Abuse Treatment Facility—not just the hospital—an issue not raised in the complaint. He claims Nguyen was responsible for notifying his family of his condition. Shebby also claimed in his declaration and brief opposing summary judgment that, because of Hirsch, he did not receive crutches for a period of time after he was treated for a broken ankle. In his brief opposing the motion, Shebby said he “hope[d]” to amend the complaint to add all this material. In his “motion to vacate judgment” Shebby asked the court to allow him to amend the complaint. He cited Krupp v. Mullen (1953) 120 Cal.App.2d 53, in which the court stated: “‘If either party finds, on the hearing of such a [summary judgment] motion, that his pleading is not adequate, either by way of allegation or denial, the court may and should permit him to amend; but in the absence of some request for amendment there is no occasion to inquire about possible issues not raised by the pleadings.’” (Id. at p. 57; see also Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611.) He filed a separate request for permission to file an amended complaint after the motion to vacate was denied.
Shebby now argues that the trial court should have granted him leave to amend the complaint in order to avoid summary judgment and that we should grant him leave to do so now. He attaches a proposed amended complaint to his supplemental appellate brief. It includes the new claims and proposed defendants we have just described, increases the damages sought to $3,000,000 and adds a prayer for injunctive relief.
Even assuming Shebby adequately placed a request for leave to amend before the trial court, we conclude that it would have been inappropriate for the trial court to allow amendment in order to avoid summary judgment. His opposition to the summary judgment motion did not cite evidence sufficient to raise triable issues of fact on the claims that the medical technical assistant was responsible for dispensing Shebby’s medications; that the same assistant’s alleged failure to dispense the medications arose from any negligence on his part; that the associate warden was responsible for the alleged lack of Native American religious services at the facility; that Nguyen was responsible for notifying Shebby’s family; that his family was not notified because of some misfeasance on Nguyen’s part; or that the alleged delay in the provision of crutches was caused by any misfeasance on Hirsch’s part. We do not understand the rule set forth in Krupp v. Mullen, supra, 120 Cal.App.2d at page 57 to mean that a plaintiff can defeat a summary judgment motion by introducing a set of new, unsupported allegations against unserved proposed defendants in his opposition papers. Instead, it means the court should grant leave to amend where the opposition supplies evidence which, but for the pleading defect, would defeat the motion. Here, given the lack of evidence on the new claims and parties, summary judgment properly would have been granted even if Shebby’s complaint had included all the proposed new material.
Shebby did supply evidence related to his claim that the three newly named correctional officers unlawfully shackled his injured ankle. Since the shackling claim was not included in the government tort claim Shebby filed on March 28, 2005, however, he was not entitled to sue on the basis of it. The court therefore was not obliged to allow him to amend his complaint to add the claim.
Hospital log pages included in Shebby’s opposition papers indicate that the three officers Shebby listed—Gerfen, Peterson and Waddle—were on duty at various times. One of the log pages bears the notation “DO NOT CUFF LEFT ANKLE HAD SURGERY AUG 2004.” Shebby’s declaration stated that unnamed correctional officers refused his request to unshackle his left leg.
In sum, Shebby failed to raise triable issues of material fact on any of his claims, and the court properly granted summary judgment in favor of Hirsch, Martinez, and McGuinness. He was not entitled to file an amended complaint. Defendants make several additional contentions in support of the judgment, including a claim that Shebby did not file his government tort claim in time, which we do not need to address.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs.
WE CONCUR: Gomes, J., Dawson, J.