Opinion
2:18-cv-03458-MEMF-ADSx
09-01-2023
ROGELIO TREJO, Plaintiff, v. MICHAEL BRANDON FREEMAN, et al., Defendants.
ORDER DENYING MOTION FOR RECONSIDERATION [ECF NO. 90]
MAAME EWUSI-MENSAH FRIMPONG, United States District Judge.
Before the Court is the Motion for Reconsideration filed by Defendant J. Sao. For the reasons stated herein, the Court hereby DENIES the Motion for Reconsideration.
I. Background
A. Factual Background
Plaintiff Rogelio Trejo (“Trejo”) is a California State Prison inmate housed at Kern Valley State Prison (“KSVP”) in Delano, California. ECF No. 77 (“MSJ Order”) at 2. Defendant J. Sao (“Sao”) is a licensed physician and surgeon assigned to KSVP as the Correctional Treatment Clinic (“CTC”) physician. Id. This case concerns whether Sao, who was responsible for monitoring Trejo's primary medical needs following an injury, acted with deliberate indifference in doing so. Id.
B. Procedural History
On April 25, 2018, Trejo filed a Complaint against multiple defendants, including Sao. ECF No. 1. On May 2, 2018, Trejo filed a First Amended Complaint. ECF No. 5. On July 10, 2019, Trejo filed a Second Amended Complaint. Second Amended Complaint, ECF No. 15 (“SAC”). On December 22, 2020, the Court issued an order dismissing claims against all defendants except Sao. ECF No. 62. Trejo currently alleges one claim against Sao for deliberate indifference under 42 U.S.C. § 1983. See generally SAC.
On September 21, 2021, Sao filed a Motion for Summary Judgment. ECF No. 71 (“MSJ”). On January 19, 2022, the Magistrate Judge issued a Report and Recommendation, recommending that the Court issue an order granting the Motion. ECF No. 74 (“Report”). No objections to the Report were filed.
Although Trejo did not file an objection to the Report, he did file a verified complaint-he stated under penalty of perjury that the contents of his SAC were true and correct. See SAC at 16; Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995).“A verified complaint may be used as an opposing affidavit under Rule 56.” Id. “To function as an opposing affidavit, however, the verified complaint must be based on personal knowledge and set forth specific facts admissible in evidence.” Id. (citing FED. R. CIV. P. 56(e) (providing in part that “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”)). Here, the Plaintiff s verified complaint constitutes an opposing affidavit because it is based on Plaintiff s personal knowledge of admissible evidence, not merely on his belief. The Court therefore finds it appropriate to consider the allegations in Plaintiff s SAC in resolving the Motion for Summary Judgment.
On March 30, 2023, the Court issued an Order Declining to Adopt the Report and Recommendation and Denying the Motion for Summary Judgment. See generally MSJ Order. The Court ultimately concluded that (1) at least a genuine dispute of material fact exists as to whether Trejo properly exhausted his administrative remedies, and (2) a genuine dispute of material fact exists as to whether Sao acted with deliberate indifference in addressing Trejo's medical needs. MSJ Order at 10-15.
On May 4, 2023, the Court granted Sao's Ex Parte Application for Leave to File a Motion for Reconsideration. ECF No. 89. On May 9, 2023, Defendant filed the instant Motion for Reconsideration. ECF No. 99 (“Motion” or “Mot.”). On August 11, 2023, the Court took the Motion under submission, finding it appropriate for decision without oral argument. Dkt. 94; see Fed.R.Civ.P. 78(b); Local Rule 7-15.
II. Applicable Law
A. Motions for Reconsideration
A district court “possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order” for sufficient cause. City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (emphasis omitted) (quoting Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). A motion for reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources,” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (discussing the standard of a motion for reconsideration under Fed.R.Civ.P. 59(e)). Moreover, the Ninth Circuit has established that “a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.” Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951 (1993)). A motion for reconsideration may not be used to reargue the motion or present evidence that should have been presented prior to the entry of judgment. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). Reconsideration is appropriate if the movant demonstrates clear error, manifest injustice, newly discovered evidence, or an intervening change in controlling law. Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).
Moreover, pursuant to Local Rule 7-18 of this District, a motion for reconsideration may be made only on the grounds of:
(a) a material difference in fact or law from that presented to the Court that, in the exercise of reasonable diligence, could not have been known to the party moving for reconsideration at the time the Order was entered, or (b) the emergence of new material facts or a change of law occurring after the Order was entered, or (c) a manifest showing of a failure to consider material facts presented to the Court before the Order was entered. No motion for reconsideration may in any manner repeat any oral or written argument made in support of, or in opposition to, the original motion.C.D. Cal. L.R. 7-18.
III. Discussion
Sao requests that the Court reconsider its MSJ Order and grant his Motion for Summary Judgment because: (1) additional evidence supports that Trejo's grievance was untimely; (2) Trejo's grievance was too vague to put the institution on notice that he was complaining about Sao's care; and (3) the Court disregarded material facts presented in reaching the decision to deny Sao's Motion for Summary Judgment. Mot. at 5-18. Trejo did not file an opposition.
The Court also notes that Sao further argued that there was no evidence that administrative remedies were unavailable to Trejo. Mot. at 14-15. In his Motion, Sao recognizes that “[i]t does not appear that this was the basis for the Court's Order,” but nonetheless chooses to “address the Court's statement that ‘If anything, it appears that the circumstances under which Trejo has found himself would have rendered his administrative remedies “effectively unavailable.”'” Id. at 14. Because, as Sao noted, this sentence was mere dicta and not a basis for the Court's MSJ Order-and therefore appears to have no bearing on this Motion for Reconsideration-the Court declines to address this argument.
A. The additional evidence Sao presents in support of his contention that Trejo's grievance was untimely could have been introduced previously.
Sao contends that additional evidence that could not have been previously presented to the Court demonstrates that Trejo's grievance was untimely. Mot. at 5-10. Specifically, Sao argues that additional evidence shows that (1) Trejo has testified he had no pain management issues after the April 6, 2017 Surgery, (2) Sao was not involved with Trejo's pain management after May 18, 2017, and (3) Trejo was not housed in the same facility where Sao was assigned after July 3, 2017. Id. at 5-9. Moreover, he argues that he could not have introduced this additional evidence-in the form of excerpts of Trejo's deposition, transfer records, and records regarding the last service date of Sao's treatment of Trejo-earlier because none of this evidence was an issue in the case prior to them being raised in the Order. Id. at 9-10.
However, Sao's contention that he could not have introduced this additional evidence earlier because none of the evidence was an issue in the case before the Court's MSJ Order is unavailing. All of the evidence he now seeks to introduce is probative as to whether Trejo's grievance was untimely and was therefore an issue at the time the Motion for Summary Judgment was filed. As such, Sao could have-and should have-submitted this evidence in support of his Motion for Summary Judgment.
In his initial Motion, Sao argued that Trejo's grievance was not timely filed because Trejo's surgeries and subsequent interactions with Drs. Norris, Freeman, and Sao took place between February 5, 2017, and April 6, 2017-more than thirty days before the Initial Grievance was filed on October 11, 2017. MSJ at 13-14. As such, Sao met his initial burden of production. Trejo did not file an Opposition to the Motion and, as a result, the burden of persuasion never shifted back to Sao. However, even where no opposition is filed to a Motion for Summary Judgment, the court must nonetheless consider the merits of the motion. See Heinemann v. Satterberg, 731 F.3d 914, 916-17 (9th Cir. 2013). The Court ultimately found-based on the record-that Trejo's initial grievance included allegations of ongoing issues of pain management and that, therefore, a genuine dispute of material fact exists as to whether his Initial Grievance was timely filed.
Sao's argument with respect to the purported additional evidence does not fall under any other basis for reconsideration-he does not argue that there was clear error, manifest injustice, newly discovered evidence, an intervening change in controlling law, or a failure to consider material facts presented. See Sch. Dist. No., 5 F.3d at 1263; C.D. Cal. L.R. 7-18. As such, the Court DECLINES to grant the Motion on this basis.
B. The Court's prior conclusion that Trejo's grievance was sufficient to put the institution on notice that he was complaining about Sao's care is neither contrary to the material facts presented to it on the Motion for Summary Judgment nor contrary to case law.
Sao further contends that the Court's finding that the language of the grievance was sufficient to satisfy the grievance requirements was contrary to the material facts presented to the Court and contrary to case law. Mot. at 10-14.
First, Sao argues that the Court's conclusion that the plain language of Trejo's grievance was insufficient to put the institution on notice of his complaints against Sao was contrary to the material facts presented to the court and contrary to case law. Id. at 10. In particular, he argues that the grievance itself identifies only “Dr. Freeman” and the “substandard and negligent quality” of the surgery by Dr. Freeman, and that the grievance only references Dr. Freeman's surgery as the cause of his ongoing pain and suffering. Id. Notably, Sao does not dispute that Trejo clearly complained of “undo [sic] pain for weeks” and “an unnecessary wanton infliction of pain.” Moreover, as the Court pointed out in its MSJ Order-and Sao does not dispute-Sao's declaration in support of the Motion for Summary Judgment made clear that he had significant responsibility for Trejo's pain management. ECF No. 71-4 (“MSJ Sao Decl”) ¶¶ 6, 9. Even though the pain may have been caused by Dr. Freeman's surgery, Sao was nonetheless responsible for ensuring that Trejo received treatment for his pain. As such, the Court declines to depart from its prior finding that the allegations in Trejo's grievance was sufficient to put the institution on notice.
Second, Sao acknowledges that the Court correctly noted that the regulations in effect required that an inmate filing a grievance was required to identify any involved personnel by name and position but provides an exception where a “grievant does not have information to identify involved staff member(s).” Mot. at 11; see also Cal. Code Regs. tit. 15, § 3999.227(g)(2). Under these circumstances, the grievant is required instead to “provide any other available information that may assist in processing the health care grievance.” Cal. Code Regs. tit. 15, § 3999.227(g)(2). Sao argues that Trejo never claimed that he could not identify Sao, that he did not know who Sao was, or that he did not understand the form. Id. at 12. However, the initial burden of production on a Motion for Summary Judgment falls on the moving party-in this case, Sao. As such, it was Sao's prerogative to demonstrate that Trejo could have identified Sao, that he knew who Sao was, or that he understood the form at the time his grievance was submitted. Sao does not appear to specifically cite to any evidence demonstrating that this was the case-either in his initial Motion for Summary Judgment or the Motion for Reconsideration. Therefore, a reasonable jury could conclude that the exception under Section 3999.227(g)(2)-excusing Trejo from identifying involved personnel by name and position-applied. The Court declines to depart from its prior finding on this basis.
Lastly, Sao argues that the Court's finding that the language in Trejo's grievance was sufficient to put the institution on notice is contrary to case law. Mot. at 12-14. However, the cases cited by Sao are distinguishable. See, e.g., Harmon v. Lewandowski, 2023 U.S. App. LEXIS 6512 (Mar. 20, 2023) (finding that a reference to “floor staff' was insufficient to put the institution on notice of complaints against a particular individual); Bartholomew v. Moss, 2020 U.S. Dist. LEXIS 85323, at *1 (E.D. Cal. May 14, 2020) (finding allegation that “unnumbered, unnamed staff conspired in unspecified ways with [a named individual] . . . does not provide sufficient notice for meaningful administrative review”). In both Harmon and Bartholomew, the allegations submitted by the grievant could have applied to countless individuals due to the ambiguous language used- presumably, there are myriad “floor staff' or “staff' generally, such that it would have been impossible for the institution to pinpoint the exact individuals responsible for the complaints in either of these cases. In contrast, although Sao argues that the institution was “staffed by numerous CDCR employees, including nurses, doctors, dentists,” Mot. at 12, only a discrete number of employees treated Trejo, and even fewer were specifically responsible for managing the pain of which Trejo complained. The Court again declines to depart from its prior finding on this basis.
The Court also notes, as an aside, that neither of the cases cited by Sao as a comparison to the instant case are published or constitute binding legal authority on this Court.
Ultimately, the Court finds that its prior conclusion was neither contrary to the material facts presented to it on Sao's Motion for Summary Judgment nor contrary to case law. Sao's argument with respect to the alleged vagueness of Trejo's grievance does not fall under any other basis for reconsideration-he does not argue that there was manifest injustice, newly discovered evidence, or an intervening change in controlling law. See Sch. Dist. No., 5 F.3d at 1263; C.D. Cal. L.R. 7-18. As such, the Court DECLINES to grant the Motion on this basis.
C. The Court did not disregard material facts presented in reaching the decision to deny Sao's Motion for Summary Judgment.
Sao contends that the Court disregarded material facts presented in reaching the decision to deny Sao's Motion for Summary Judgment on the basis that a genuine dispute of material fact exists as to whether Sao acted with deliberate indifference in addressing Trejo's medical needs. Mot. at 15-18.
The Eighth Amendment protection against cruel and unusual punishment includes the right of prisoners to receive adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). Claims for denial of adequate medical care must meet two elements: (1) the deprivation must be sufficiently serious; and (2) the officials must have acted with a sufficiently culpable state of mind. LeMaire v. Maass, 12 F.3d 1444, 1451 (9th Cir. 1993). “[T]he existence of chronic and substantial pain” may constitute a serious medical need. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997). Deliberate indifference may include denial of medical care resulting in unnecessary pain and suffering and may be “manifested by prison doctors in their response to the prisoner's needs.” Estelle, 429 U.S. at 104-05. However, “an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain' or to be ‘repugnant to the conscience of mankind.'” Id. at 105-06. Moreover, “a plaintiff's showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal quotation marks omitted), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)). To show deliberate indifference, a plaintiff must demonstrate “that the course of treatment the doctors chose was medically unacceptable under the circumstances” and that the defendants “chose this course in conscious disregard of an excessive risk to plaintiff's health.” Snow v. McDaniel, 681 F.3d 978, 987-88 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).
Sao argued that the Court disregarded the “large amount of evidence submitted by Defendant establishing that he provided continuous care to Plaintiff, provided pain medication, referred Plaintiff to specialists, and relied on the expertise of specialists.” Mot. at 15. In its MSJ Order, this Court found a genuine dispute as to whether Sao prescribed Tylenol 3 (as Sao contends) or merely Tylenol (as Trejo testified during his deposition). MSJ Order at 14-15.
As an initial matter, the Court disagrees with Sao's contention that the Court disregarded the evidence submitted regarding the care provided by Sao. In reviewing the Motion for Summary Judgment, the Court considered the arguments made by Sao in his Motion, as well as the evidence cited therein.
To the extent that Sao wanted the Court to consider additional evidence in the record not cited to in the Motion, this is not required: The Court need not “comb the record” looking for other evidence; it is only required to consider evidence set forth in the moving and opposing papers and the portions of the record cited therein. FED. R. CIV. P. 56(c)(3); Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).
Sao further argues that the evidence does not support the Court's conclusion that Sao may have prescribed Tylenol instead of Tylenol 3 and that what he prescribed would not be material either way. Mot. at 15-18. In support of his contention that this detail is immaterial, Sao cites to Parlin v. Sodhi, 2012 WL 5411710 (C.D. Cal. Aug. 8, 2012). In Parlin, the court found that the plaintiff's preference for a stronger medication was a difference in medical opinion between lay prisoner and medical personnel and was therefore insufficient to establish Eighth Amendment violation. Parlin, 2012 WL 5411710, at *5. However, this case is distinguishable-here, although Trejo did request stronger medication than Tylenol, his alleged reason for doing so was not due to a difference in medical opinion-rather, both Trejo and Sao appear to agree that merely prescribing Tylenol was insufficient. MSJ at 21 & n.5. As such, the Court finds that whether Sao prescribed Tylenol instead of Tylenol 3 is not merely a “difference in medical opinion,” but rather is material to determining whether he acted with deliberate indifference.
Moreover, the Court declines to depart from its conclusion that a genuine dispute of material fact exists as to whether Sao prescribed Tylenol or Tylenol 3. As the Court noted in its MSJ Order, although Sao insists that he prescribed Tylenol 3, Trejo, in his deposition testimony, stated that he received only Tylenol. In the event that Sao did only provide Tylenol, Sao's insistence in his Motion that he prescribed Tylenol 3 gives rise to questions regarding whether a prescribing anything less was “medically unacceptable under the circumstances” or that Sao “chose this course in conscious disregard of an excessive risk to plaintiff's health.” Without further context, the Court cannot conclude that no genuine dispute exists as to whether Sao's conduct amounted to deliberate indifference. Ultimately, the Court finds that its prior conclusion did not constitute a disregard of material facts presented to it. Sao's argument with respect to deliberate indifference does not fall under any other basis for reconsideration-he does not argue that there was manifest injustice, newly discovered evidence, or an intervening change in controlling law. See Sch. Dist. No., 5 F.3d at 1263; C.D. Cal. L.R. 7-18. As such, the Court DECLINES to grant the Motion on this basis.
Sao argues that Trejo “provides no foundation for how he knew that he was being prescribed Tylenol; nor does he, or has he, ever indicated who dispensed the medication to him.” Mot. at 16. However, the Court notes that Sao's counsel conducted the deposition of Trejo and could have-but declined to-ask him to provide the foundation Sao now seeks. Moreover, although Trejo testified that “[a]ll they gave me was Tylenol and that was it,” Transcript of Deposition of Rogelio Trejo, ECF No. 71-3, Ex. A (“Trejo Dep. Tr.”) at 37:18-22, the Court notes that Sao testified that he was responsible for providing pain medicine to Trejo, Sao Decl. ¶¶ 6, 9-as such, a reasonable jury may find (or Trejo may later clarify during trial) that Sao dispensed the medication to him.
IV. Conclusion
For the foregoing reasons, the Court hereby DENIES the Motion for Reconsideration.
IT IS SO ORDERED.