Fleming v. Lefevere
| Decision Date | 17 January 2006 |
| Docket Number | No. 03-06199-PA (VBK).,03-06199-PA (VBK). |
| Court | U.S. District Court — Central District of California |
| Parties | Harold FLEMING, Plaintiff, v. Clinton LEFEVERE, Defendant. |
Harold Fleming, pro se.
G. Michael German, Office of the California Attorney General, San Diego, CA, for defendant.
ORDER (1) ACCEPTING AND ADOPING THE REPORT AND RECOMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND (2) DISMISSING THE COPLAINT
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, Defendant's Motion for Summary Judgment and all other papers along with the attached Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Report and Recommendation.
IT IS THEREFORE ORDERED that a Judgment be entered (1) approving and adopting the Report and Recommendation, (2) granting Defendant's Motion for Summary Judgment and (3) directing that Judgment be entered dismissing the Complaint, and the action, with prejudice.
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.
On September 4, 2003, Harold Fleming (hereinafter referred to as "Plaintiff') filed a "Declaration to Proceed Without Prepayment of Fees." On September 4, 2003, an Order was issued granting Plaintiffs motion to proceed without prepayment and allowing the filing of Plaintiffs Complaint. On September 9, 2003, the Court issued an Order Directing Service by the United States Marshal on Defendant Dr. Clinton LeFevere.
On December 16, 2003, Defendant Dr. LeFevere filed an Answer to the Complaint.
On May 20, 2005, Defendant Dr. LeFevere filed a "Notice of Motion for Summary Judgment;" "Defendant's Request for Judicial Notice;" "Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment;" "Declaration of Clinton Lefevere, M.D. and Exhibits in Support of Defendant's Summary Judgment" and "[Proposed] Statement of Uncontroverted Facts and Conclusions of Law in Support of Defendant's Summary Judgment Motion."
On May 23, 2005, the Court issued a Minute Order ordering Plaintiff to file an Opposition to Defendant's Motion for Summary Judgment and attaching a Notice discussing the requirements for opposing a motion for summary judgment.
On June 8, 2005, Plaintiff filed a document entitled "Motion for Order Compelling Disclosure and Discovery Pursuant to Rules 37, 26, 33 and 26(a) of the Federal Rules of Civil Procedure" and "Motion for Extension of Time Pursuant to FRAP [sic] Rule 26." On June 17, 2005, the Court granted Plaintiff an extension of time to file an Opposition to Defendant's Motion for Summary Judgment up to and including August 22, 2005.
On September 21, 2005, the Court sua sponte granted Plaintiff another extension of time to respond to Defendant's Motion for Summary Judgment up to and including October 21, 2005.
As of the date of this Report and Recommendation, Plaintiff has failed to file an Opposition or Statement of Non-Opposition to the Motion for Summary Judgment.
On or about April 9, 2002, Plaintiff was seen by Defendant Dr. LeFevere, a staff psychiatrist at California Men's Colony ("CMC"), pursuant to a referral from Dr. David Araya, another CMC staff physician, for consultation for Interferon treatment for Hepatitis C. On April 9, 2002, Defendant Dr. LeFevere conducted a psychiatric examination of Plaintiff pursuant to Dr. Araya's referral. Based on that examination, Defendant Dr. LeFevere completed an evaluation form and dictated a report to the CMC Hepatitis C Committee. (Complaint, unnumbered Exs. 4 and 5; Dr. LeFevere's Declaration ¶ 3 and Ex. B.)
In his report, Defendant Dr. LeFevere concluded that Plaintiff had a psychiatric condition diagnosed as major depression with psychotic features. Though in partial remission due to the antidepressant medication Plaintiff was prescribed, he continued to suffer some symptoms of depression, which symptoms sometimes led to Plaintiffs failure to take his antidepressant medication. (Plaintiffs Complaint, unnumbered Exs. 4 and 5; Dr. LeFevere's Declaration ¶ 4 and Exs. B and C.)
Since Plaintiff continued to have symptoms of depression on an adequate dose of antidepressant, Defendant Dr. LeFevere concluded that Plaintiffs depression attendant to the use of Interferon, which is sometimes but not always indicated for Hepatitis C patients like Plaintiff, would likely be too severe for Plaintiff. (Plaintiffs Complaint, unnumbered Exs. 4 and 5; Dr. Lefevere's Declaration ¶ 5 and Exs. B and C.)
On the basis of his conclusion, Defendant Dr. LeFevere reported Plaintiff to be a poor candidate for treatment with Interferqn but included a caveat that since his episodes of depression on Zoloft were mild and lasted no longer than a few days at a time, they should probably not preclude treatment at some future date. (Plaintiffs Complaint, unnumbered Exs. 4 and 5; Dr. LeFevere's Declaration ¶ 6 and Exs. B and C.)
The Hepatitis C Committee recommended reconsideration of the case a later time but concurred that Interferon not be started in April 2002. Dr. LeFevere did not deny Plaintiff treatment for Hepatitis C but stated that he was a fairly poor candidate for treatment of Hepatitis C with Interferon at that time.
The Hepatitis C Committee at CMC is not Defendant Dr. LeFevere's committee, but instead a committee formed from some of the CMC physicians. Defendant Dr. LeFevere has never been a part of or presided over the Hepatitis C Committee. (Dr. LeFevere's Declaration ¶ 7.)
In April 2002, when CMC psychiatrists were assigned to consult with Hepatitis C patients, they were instructed to complete the check-off evaluation form and dictate a report to the Hepatitis C Committee. They were instructed to consider the risks of psychotic and depressive relapse on Interferon, both of which are recognized factors in prescribing the drug to patients; the strength of motivation for treatment of Hepatitis C; the inmate's history of medicine noncompliance and any factors which related to the risks of Hepatitis C reinfection. (Plaintiffs Complaint, unnumbered Exs. 4 and 5.) Defendant Dr. LeFevere complied with all of these directives in Plaintiffs case. (Dr. LeFevere's Declaration ¶ 8 and Exs. B and C.)
Plaintiff was vaccinated against Hepatitis A in April 2002 and was and remains gradually and steadily in remission from his depression as a result of the course of treatment prescribed by CMC medical staff. (Dr. LeFevere's Declaration 1110 and Exs. B and C.)
Plaintiff alleges that his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 7 and Article I, Section 24 of the California Constitution have been violated by Defendant Dr. Le-Fevere. (See Complaint at 5.)
A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of informing the court of the basis for the motion, and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
In determining whether a triable issue of material fact exists, the evidence must be considered in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991). However, summary judgment cannot be avoided by relying solely on conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989): More than a "metaphysical" doubt is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A party opposing a properly supported motion for summary judgment "... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 247, 106 S.Ct. 2505, citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).
Finally, where the evidence conflicts, questions of credibility and motivation generally present an issue of material fact inappropriate for resolution on summary judgment. See, Allen v. Scribner, 812 F.2d 426, 435, 437 (9th Cir.1987), amended on other grounds, 828 F.2d 1445 (9th Cir. 1987); see also Valandingham v. Bojorquez, 866 F.2d 1135, 1139, 1140 (9th Cir. 1989) (). Thus, when a plaintiff presents evidence on which the trier of fact could reasonably resolve a material factual issue in his favor, summary judgment for defendants is not appropriate. See, Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir.1991), cert. denied, 505 U.S. 1206, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992); see also Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 19...
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