167 Cal.App.4th 1468, A118431, Apollo v. Gyaami

Docket Nº:A118431
Citation:167 Cal.App.4th 1468, __ Cal.Rptr.3d__
Party Name:JOHN V. APOLLO, Plaintiff and Appellant, v. ELIZABETH GYAAMI, as Food Administrator I, etc., Defendant and Respondent. JOHN V. APOLLO, Plaintiff and Appellant, v. DENNIS HAWLEY, as Staff Physician, etc., Defendant and Respondent. JOHN V. APOLLO, Plaintiff and Appellant, v. MS. MANN, as Registered Nurse, etc., Defendant and Respondent.
Case Date:October 31, 2008
Court:California Court of Appeals

Page 1468

167 Cal.App.4th 1468

__ Cal.Rptr.3d__

JOHN V. APOLLO, Plaintiff and Appellant,


ELIZABETH GYAAMI, as Food Administrator I, etc., Defendant and Respondent.

JOHN V. APOLLO, Plaintiff and Appellant,


DENNIS HAWLEY, as Staff Physician, etc., Defendant and Respondent.

JOHN V. APOLLO, Plaintiff and Appellant,


MS. MANN, as Registered Nurse, etc., Defendant and Respondent.


California Court of Appeal, First District, Third Division

October 31, 2008

Superior Court, County of Solano, Super. Ct. No. FCS024920, FCS024923, FCS024922, Trial Judge: Hon. Paul L. Beeman, Judge

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[Copyrighted Material Omitted]

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John V. Apollo, in propria persona, for Plaintiff and Appellant

Edmund G. Brown Jr. Attorney General, David S. Chaney, Chief Assistant Attorney General, Frances T. Grunder Senior Assistant Attorney General, Michael W. Jorgenson Supervising Deputy Attorney General, Julianne Mossler Deputy Attorney General for Defendant and Respondent Elizabeth Gyaami.

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Jenkins, J.

Appellant John V. Apollo appeals from the judgment entered against him after the trial court granted a motion for summary judgment filed by respondent Elizabeth Gyaami, R.D., and dismissed defendants Dennis Hawley, M.D., and Ms. Mann, R.N., from the case for lack of proper service.1 For reasons discussed below, we reverse the judgment and remand to the trial court for further proceedings consistent with appellant’s right of meaningful access to the courts to prosecute a bona fide civil claim.

Factual and Procedural Background

Appellant, a state prisoner housed at the California Medical Facility (CMF) in Vacaville, brought a lawsuit seeking $250,000 in damages against respondent for personal injury. Shortly thereafter, appellant filed nearly identical lawsuits seeking the same amount in damages for personal injury against Dr. Hawley and Nurse Mann. The trial court subsequently consolidated these three lawsuits into a single lawsuit in the interest of judicial economy.

I. Appellant’s Allegations.

Appellant’s lawsuit stemmed from the refusal of CMF personnel to provide him with a medically-prescribed special diet when he was transferred from Folsom State Prison on a “medical override” due to his medical condition of diverticulitis of the colon. Shortly before his transfer to CMF, the staff physician at Folsom State Prison made the following order: “This patient has a chronic dietary problem that he needs a special diet in a medical facility. No expiration.” Consistent with that order, after appellant arrived at CMF, two physicians on at least three separate occasions ordered that appellant receive a high fiber, low fat, no dairy, no spice, and minimal meat (chicken and fish only) diet. After several weeks, however, appellant was still not receiving the special diet, and thus went to speak with respondent, a registered dietician and the head dietician at CMF.

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Respondent advised appellant that, to receive a special diet under the current state policy, he would need to take a “psych-medication.”2 When appellant told respondent that he had been transferred to CMF on a medical override due to his colon condition, and that two different physicians at CMF had prescribed a special diet, respondent replied: “They do not know what they are doing, as I am the dietician, and I know what you can and can not [sic] have!” Respondent thus refused to comply with the orders of appellant’s physicians. Respondent did offer to order appellant a vegetarian diet, but when appellant told her he was not a vegetarian, she told him he would need to return to the medical clinic.

At the medical clinic, appellant spoke with Nurse Mann, and explained to her that, based on his medical condition, several physicians had prescribed a special diet for him, but that CMF personnel would not provide it to him. Nurse Mann initially advised appellant that she could not help him, but then, at appellant’s request, she called respondent to discuss his situation. When Nurse Mann finished the call, she walked over to talk to Dr. Hawley, a physician, who had his back to appellant while talking to another prisoner. Dr. Hawley, who did not examine or talk to appellant or review his medical records, then stated, according to appellant, “Hell no, I am not going to order another vegetarian diet to another prisoner, as all they are doing is manipulating medical staff.”

After further discussion, Nurse Mann returned to appellant and advised him that Dr. Hawley had ordered him a special diet. Appellant then reviewed the medical referral order that Nurse Mann had placed on the counter in front of him, which stated “personal choice” and “vegetarian.” Appellant advised Nurse Mann that he was not a vegetarian and that such diet was not his personal choice, but rather that he had a medical condition of the colon that required a special diet. Nurse Mann then crossed out with a black marker the words “personal choice” on the referral order, and advised appellant that respondent had told her that the physician should order him a vegetarian diet. When appellant continued to try to explain to Nurse Mann that he was not a vegetarian and that two other physicians had prescribed for him a specially-formulated diet, Nurse Mann became upset and ordered him to leave.

II. Appellant’s Administrative Claim.

Appellant first filed an administrative claim with the prison regarding his right to receive a medically-prescribed special diet, and then, after his claim was denied, filed an administrative appeal. As part of that review process,

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appellant was directed to talk to CMF’s mainline food manager, who explained to appellant that he had been ordered a regular mainline vegetarian diet by respondent. When appellant again stated that he had been transferred to CMF for medical reasons that required a specially-formulated, medically-prescribed diet, and that several physicians had ordered him such a diet, the food manager advised that he and respondent were in charge of prisoners’ meals, not the physicians or the Chief Medical Officer at CMF. The food manager further explained that he and respondent took orders from the State, not from medical staff. Appellant’s prison-level administrative appeal was thereafter denied.

Accordingly, having exhausted his prison-level administrative remedies, appellant filed a claim in June 2002 with the California Victim Compensation and Government Claims Board (the Board). In that claim, appellant explained that, as a result of defendants’ failure to provide a specially-formulated, medically-prescribed diet, he was suffering from chronic light-headedness, dizziness, weakness, fatigue, stomach cramps, diarrhea and a swelled stomach.

On August 1, 2003, the Board advised appellant that it would recommend rejecting his claim “because the claim raises complex issues of fact and law that should be resolved through formal legal action. . . . The Board’s rejection of your claim will allow you to initiate litigation should you wish to pursue this matter further.” On September 12, 2003, the Board notified appellant by letter that his claim had been rejected, and that he had six months from the date the letter was personally delivered or deposited in the mail to file a court action on his claim.

III. This Lawsuit.

On March 9, 2004, appellant, proceeding in propria persona, attempted to file at least one complaint based on the above allegations against the three defendants. The trial court clerk, however, would not file the complaint because appellant failed to use the proper legal forms, and thus returned it to him, along with the proper forms. On April 4, 2004, appellant returned the completed forms to the trial court, as well as a request that the clerk send him materials “explaining the local rules of Solano Superior Court.”3 It is not clear from the record what happened to appellant’s completed forms.

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On October 19, 2004, appellant, again proceeding in propria persona, filed the operative complaints in this lawsuit against “Dr. D. Hawley, M.D.”; “E. Gayaomi, R.D.”; and “Ms. Mann, R.N.” asserting claims of medical malpractice and fraud and seeking $250,000 from each in damages for personal injury. Thereafter ensued a lengthy litigation process, much complicated by appellant’s incarceration, lack of funds and lack of legal representation, which we attempt to reconstruct below.

A. Appellant’s Repeated Attempts to Serve Defendants.

Beginning in January 2005, appellant attempted to effectuate service of the summons and complaints on each of the defendants, first personally, which prison officials prohibited, and then by delivering copies of the documents to the sheriff’s office. In early April 2005, appellant was informed by the sheriff’s office that the service attempted on Nurse Mann and Dr. Hawley was unsuccessful because they were no longer employed at CMF, and that the service attempted on “E. Gayaomi, R.D.” was unsuccessful because such person did not work at CMF.

On April 4, 2005, appellant moved to amend the complaint to correct the spelling of respondent’s name from Gayaomi to Gyaami. The trial court granted his motion on April 14, 2005. Two weeks later, on April 28, 2005, the trial court issued an order to show cause why the lawsuit against respondent should not be dismissed and appellant sanctioned for his failure to file a case management report, to timely serve respondent with a copy of the summons and complaint, and to appear at the April 26, 2005, case management conference.

Appellant responded to the order to show cause on May 9, 2005, explaining that, as a state prisoner, he could...

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