Dragasits v. Rucker

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA [3] 4 Steven DRAGASITS, Case No.: 3:18-cv-0512-WQH-AGS 5 Plaintiff, REPORT AND RECOMMENDATION ON DEFENDANTS’ SUMMARY6 v. JUDGMENT MOTION (ECF 88) [7] 8 T. RUCKER, et al., 9 Defendants. [10] 11 An inmate sued prison guards for civil-rights violations, including retaliation, 12 denying access to courts, deliberate indifference to serious medical needs, and failing to 13 summon medical care. The guards move for summary judgment. 14 BACKGROUND 15 Plaintiff Stephen Dragasits is an inmate at R.J. Donovan Correctional Facility. 16 (ECF 6, at 3.) This suit arises from two searches of his cell, exactly one year apart. 17 A. 2015 Cell Search(es) by Defendants Rucker and Figueroa 18 On February 9, 2015, prison officers conducted a facility-wide search. (See ECF 6, 19 at 186; ECF 88-4, at 2; ECF 88-5, at 2; see ECF 88-1, at 8.) Two guards—defendants 20 Rucker and Figueroa—searched Dragasits’s cell. (ECF 88-4, at 2; ECF 88-5, at 2; see 21 ECF 6, at 186.) They confiscated some items and offered Dragasits the receipt. (ECF 88-4, 22 at 2; ECF 88-5, at 2; ECF 6, at 186.) Dragasits refused to sign it. (ECF 88-4, at 2; 23 ECF 88-5, at 2; ECF 6, at 186; see ECF 88-1, at 3.) 24 Dragasits claims that, “because [he] refuse[d] to sign the receipt,” Rucker and 25 Figueroa searched Dragasits’s cell a second time, taking other items “without providing a [28] 1 receipt . . . .” (ECF 6, at 186.) Rucker and Figueroa attest they conducted only “one 2 search.”1 (ECF 88-4, at 2; ECF 88-5, at 2.) 3 B. 2016 Cell Search by Defendant Marshal 4 On February 9, 2016—exactly one year after the 2015 cell search—defendant 5 Marshal and another guard searched Dragasits’s cell and seized his orthopedic shoes, 6 among other items. (ECF 88-1, at 39; ECF 88-3, at 2–3; see ECF 6, at 4.) Before they left, 7 Dragasits told Marshal that the “orthopedic shoes were approved by the clinic doctor” and 8 that he “need[ed] them . . . .” (ECF 11, at 88.) 9 That same day, he formally asked that Marshal return his “doctor approved 10 orthopedic shoes.” (ECF 6, at 24.) In his written request, Dragasits recounted that he 11 “offered twice to show you [Marshal] medical history paperwork” and complained that 12 Marshal was “responsible for pain I am suffering each day I am without my orth[oped]ic 13 shoes.” (Id.) Marshal maintains that she refused to return the prescribed shoes because 14 Dragasits “was unable to produce any . . . [medical] documentation” and “the prison’s 15 computer data base” did not show any medical footwear issued to him. (ECF 88-3, at 3; 16 see also ECF 88-1, at 39; ECF 88-1, at 15, 18.) 17 Three days later, the database was updated with a notation for his “orthotic shoes.” 18 (ECF 88-1, at 16.) Dragasits in fact had a prescription for orthopedic footwear. (ECF 104, [21] 1 Defendants contend that Dragasits admitted at deposition that there was only one [22] 2015 search. (ECF 88, at 13-14 (quoting ECF 88-1, at 9).) And “a party cannot create an 23 issue of fact by an affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). But Dragasits’s affidavit does not conflict [24] with his testimony. In his affidavit, Dragasits maintained that his cell was searched twice 25 on February 9, 2015. (ECF 6, at 186.) Similarly, in his deposition, Dragasits affirmed that February 9 was “the only day in 2015 that Figueroa and Rucker searched [his] cell” and [26] that “they [n]ever search[ed] [his] cell at any other time[.]” (ECF 88-1, at 9.) In the light 27 most favorable to Dragasits, when he testified that officers never searched his cell at any other “time,” he meant that they never searched at any time other than February 9. [28] 1 at 49.) Indeed, he suffered from years of foot pain and was still recovering from a recent 2 foot fracture. (ECF 6, at 228; ECF 104, at 45–54.) 3 Although the medical staff later approved Dragasits’s request for new orthopedic 4 shoes (ECF 88-1, at 21), he waited nearly five months—until July 5, 2016—for them to be 5 issued. (Id. at 30; ECF 104, at 57.) That same summer Dragasits sought medical attention 6 for ankle “tendon/muscle tightness and pain.” (ECF 104, at 83.) He was eventually 7 diagnosed with an Achilles tendon injury and underwent a surgical repair. (ECF 6, at 298.) 8 DISCUSSION 9 As a result of these searches, Dragasits alleges several civil-rights violations, which 10 are each discussed below. Defendants move for summary judgment on all claims. 11 A. Governing Law 12 “The court shall grant summary judgment if the movant shows that there is no 13 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 14 of law.” Fed. R. Civ. P. 56(a). A dispute over a material fact is “genuine” when “the 15 evidence is such that a reasonable jury could return a verdict for the nonmoving party.” 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the facts 17 and draw all reasonable inferences “in the light most favorable to the party opposing the 18 [summary judgment] motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted 19 and alteration in original). In fact, the nonmoving party’s evidence “is to be believed, and 20 all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 . 21 When inmates represent themselves, the Court is obliged “particularly in civil rights 22 cases, to construe the pleadings liberally and to afford the [prisoner] the benefit of the 23 doubt.” Bretz v. Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 1985) (en banc). The Court 24 must consider all of a pro se plaintiff’s “contentions offered in motions and pleadings,” 25 when “such contentions are based on personal knowledge and set forth facts that would be 26 admissible in evidence,” so long as plaintiff “attested under penalty of perjury that the 27 contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918 , 28 923 (9th Cir. 2004). In this case, Dragasits did not attest to the truth of his operative 1 complaint (ECF 42) or summary-judgment opposition (ECF 104). Thus, the Court will not 2 consider factual statements made in those filings as opposing evidence. See also Willis v. 3 Ritter, Civil No. 04-2303 WQH (JMA), 2008 WL 821828 , at *1 n.2 (S.D. Cal. Mar. 26, 4 2008) (“[Plaintiff’s] pleading does not conform with 28 U.S.C. § 1746 ; therefore, the 5 allegations contained therein cannot be considered as a sworn affidavit in opposition to 6 summary judgment under Fed. R. Civ. P. 56.”), aff’d, 372 F. App’x 780 (9th Cir. 2010). 7 The accompanying sworn affidavits and documents, however, are proper evidence. Also, 8 the Court will consider various affidavits and documents that Dragasits incorporated by 9 reference in his opposition. See Fed. R. Civ. P. 56(c)(1)(A) (allowing summary-judgment 10 opposition to be supported by “citing to particular parts of materials in the record”); 11 (ECF 104, at 43 (incorporating by reference exhibits at ECF 6)). 12 B. Retaliation 13 Defendants Rucker and Figueroa move for summary judgment on Dragasits’s 14 First Amendment retaliation claim regarding the 2015 cell search. To prevail on a 15 retaliation claim, the prisoner must prove that (1) “a state actor took some adverse action 16 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action 17 (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 18 reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559 , 19 567–68 (9th Cir. 2005) (footnote omitted). For summary judgment, Rucker and Figueroa 20 need only negate one element. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) 21 (“[C]omplete failure of proof concerning an essential element of [plaintiffs’] case 22 necessarily renders all other facts immaterial.”). They negate at least two: protected 23 conduct and lack of a legitimate correctional goal. 24 1. Protected Conduct 25 Rucker and Figueroa argue that the 2015 search was motivated by a recent inmate26 guard altercation and not by Dragasits’s speech or other protected activities. (ECF 88-4, 27 at 2; ECF 88-5, at 2.) They claim that, because of “an attempted murder of a correctional 28 officer on Facility D [Dragasits’s facility] the previous day,” the warden instructed them 1 to conduct a search for weapons and contraband of “all cells and housing units” in that 2 facility. (ECF 88-4, at 2; ECF 88-5, at 2.) And they contend the purpose was “to ensure the 3 security of the prison and the safety of the inmates and staff” and “not in retaliation” for 4 Dragasits’s conduct. (ECF 88-4, at 2; ECF 88-5, at 2.) 5 Dragasits, on the other hand, offers varying theories for what prompted the search: 6 (1) an inmate-guard altercation the day before, (2) the inmates’ protest of the officers’ 7 conduct, (3) Dragasits’s threats to file a grievance, and (4) Dragasits’s refusal to sign a 8 search receipt. Each of these rationales comes up short. 9 First, in his verified account, Dragasits states Rucker and Figueroa searched his cell 10 “because the prior day there was an isolated incident between . . . officers and one prisoner 11 attack [sic].” (ECF 6, at 186.) According to Dragasits’s cellmate, “Officer Rucker said: ‘I’ll 12 teach you guys to mess with green.’” (ECF 104, at 31.) The cellmate interpreted that 13 statement as “referring to the [prior day’s] incident in the building . . . that a prisoner 14 assaulted a guard and the officers beat up the prisoner in front of everyone in the dayroom.” 15 (Id.) But this theory doesn’t help Dragasits, as ordinary fistfights and brawls aren’t a form 16 of protected expression. The First Amendment only safeguards conduct with “sufficient 17 communicative elements” that it presents an “intent to convey a particularized message” 18 with a “great” likelihood that “the message would be understood by those who viewed it.” 19 Texas v. Johnson, 491 U.S. 397, 404 (1989) (quotations omitted); cf. Chaplinsky v. 20 New Hampshire, 315 U.S. 568 , 573–74 (1942) (holding that “the constitutional right of 21 free expression” does not protect “fighting words”). 22 Dragasits’s second rationale—that the protected conduct was the inmates’ protest— 23 is on stronger legal footing but lacks evidentiary support. In Dragasits’s unverified 24 operative complaint, he claims that he or other inmates “protest[ed]” during the prior day’s 25 altercation and that the protest provoked the search. (ECF 42, at 18.) Such an outcry may 26 be protected speech. See Williams v. Bahadur, No. 2:13-CV-2052-TLN-EFB, 2015 WL 27 2174459, at *10 (E.D. Cal. May 8, 2015) (collecting cases holding that inmate protests 28 could be protected speech), adopted, No. 2:13-CV-2052-TLN-EFB, 2015 WL 4744002 1 (E.D. Cal. Aug. 10, 2015); but see Garrido v. Coughlin, 716 F. Supp. 98 , 99–101 2 (S.D.N.Y. 1989) (concluding that a “verbal confrontation” with a guard regarding the 3 guard’s “abusive treatment of another inmate” is not protected conduct). But Dragasits 4 offers no admissible evidence that this protest even happened. In their sworn declarations, 5 neither Dragasits nor his cellmate mention a protest the day before. (See ECF 6, at 186; 6 ECF 104, at 31.) Both men instead understood the officers’ motivation to be retribution for 7 the inmate-guard fight itself. (ECF 6, at 186; ECF 104, at 31.) Without any admissible 8 evidence to support it, the Court cannot find that there even was an inmate protest. 9 In his third formulation of the protected conduct, Dragasits charges—in his 10 unverified complaint—that his threats to “use the ‘inmate grievance process’ and later 11 ‘sue’” provoked a second search of his cell. (ECF 42, at 20–21.) Threats to sue or “file a 12 prison grievance” are generally protected speech. See Arrant v. Velasquez, No. CV 1813 06871-SB (AGR), 2022 WL 980650 , at *4 (C.D. Cal. Mar. 1, 2022), adopted, No. CV 1814 06871-SB (AGR), 2022 WL 971956 (C.D. Cal. Mar. 31, 2022). But Dragasits never 15 supports this theory with evidence, so it too fails. 16 Dragasits’s fourth and final take on the protected conduct is that the officers 17 reentered his cell “because [he] refuse[d] to sign the receipt.” (ECF 6, at 186.) This version 18 at least has the benefit of evidentiary support, as it comes from a sworn declaration. (Id.) 19 But refusing to sign a search receipt is not protected speech. See McDaniels v. Preito, No. 20 3:17-cv-05801-RBL-DWC, 2019 WL 1510913 , at *12 (W.D. Wash. Mar. 11, 2019) 21 (noting a complete lack of authority to suggest “a prisoner’s refusal to sign an observation 22 report is protected speech under the First Amendment”), adopted, No. 3:17-cv-0580123 RBL-DWC, 2019 WL 1505884 (W.D. Wash. Apr. 5, 2019), aff’d, 812 F. App’x 697 24 (9th Cir. 2020). 25 Thus, there is no genuine dispute about whether Dragasits engaged in protected 26 conduct. He presented no such evidence, which is fatal to his retaliation claim. [28] 1 2. Legitimate Correctional Goal 2 Even if Dragasits could prove that his protected speech led officers to search his cell, 3 he still must show that defendants’ actions were unrelated to a legitimate correctional goal. 4 Specifically, he must demonstrate that their actions were “arbitrary and capricious” or 5 “unnecessary to the maintenance of order in the institution.” Watison v. Carter, 668 F.3d 6 1108, 1115 (9th Cir. 2012) (citations and quotations omitted). 7 The “preservation of internal order and discipline [and the] maintenance of 8 institutional security” are “legitimate policies and goals” that, if they provide the 9 motivation for an official act, will defeat a claim of retaliation. Rizzo v. Dawson, 778 F.2d 10 527, 532 (9th Cir. 1985). For instance, a search of “all the prisoners’[] cells following an 11 attack on a guard” advances a legitimate correctional goal. Swan v. Smith, 50 F. App’x 362 , 12 363 (9th Cir. 2002). So the officers’ position that the search was to “discover inmate 13 manufactured weapons” and “ensure the security of the prison and safety of the inmates 14 and staff” following the “attempted murder” of an officer would be related to a legitimate 15 correctional goal.2 (ECF 88-4, at 2; ECF 88-5, at 2.) 16 Dragasits agrees that on February 8, 2015, there was an “attack” involving guards 17 and “one prisoner.” (ECF 6, at 186.) He described it as a “fight” that “95 percent of the 18 inmates were not involved in.” (ECF 88-1, at 6.) In the wake of such a guard-inmate fight— 19 regardless of who started it—prison officials had a justifiable concern about further 20 violence and a breakdown of discipline. One reasonable method for ensuring safety and 21 order in a penitentiary is to remove any contraband and weapons from the inmates’ cells. 22 Indeed, “routine shakedowns of prison cells are essential to the effective administration of 23 prisons.” Hudson v. Palmer, 468 U.S. 517, 529 (1984). Thus, even viewing the altercation [25] 2 Dragasits speculates that, had there been an attempted murder, there would have [26] been a prison-wide alert. (ECF 104, at 2.) But he doesn’t show that such an announcement 27 is automatic. Indeed, he never even contends that there wasn’t such an alert. (Id.) Regardless, the Court need not consider his unverified statements. See Willis, 2008 WL 28 1 in the light most favorable to Dragasits, the prison’s response was reasonably “[]necessary 2 to the maintenance of order.” See Watison, 668 F.3d at 1115 . That is, the day after the 3 altercation, guards searched every cell in the unit—a fact Dragasits acknowledges— 4 meaning their search did not arbitrarily or capriciously target him. (See ECF 88-4, at 2; 5 ECF 88-5, at 2; see also ECF 6, at 186 (Dragasits admitting that the search was “of 6 Facility D building 17 each cell”).) 7 In short, there is no genuine dispute about whether Dragasits can prove his retaliation 8 claim. He cannot. He did not engage in any protected conduct for the guards to retaliate 9 against. And the 2015 search “reasonably advance[d]” the “legitimate correctional goal” 10 of maintaining order the day after an inmate-guard altercation. See Rhodes, 408 F.3d 11 at 569. Thus, summary judgment should be granted for defendants on the retaliation claim. 12 C. Access to Courts 13 Dragasits also alleges that Rucker and Figueroa interfered with his access to the 14 courts by not issuing a receipt for the 2015 search. (ECF 42, at 21–22.) He insists that he 15 “needed the search slip in order to further his grievance and ultimately access [] the courts 16 by way of lawsuit.” (Id. at 22.) 17 For an access-to-courts claim, an inmate must prove an “actual injury.” Lewis v. 18 Casey, 518 U.S. 343, 349 (1996). An “actual injury” is “actual prejudice with respect to 19 contemplated or existing litigation, such as the inability to meet a filing deadline or to 20 present a claim.” Id. at 348 (citation and quotations omitted). The inmate must show that 21 “the alleged shortcomings” on the prison’s part “hindered his efforts to pursue a legal 22 claim.” Id. at 351 . 23 Dragasits’s challenge in proving such actual injury is that his requested receipt was 24 not withheld for long. In fact, Dragasits concedes that another guard, Officer Corona, gave 25 him the vital “cell search slip” on the same day as the 2015 search. (ECF 11, at 273.) 26 Corona agrees that he issued Dragasits a receipt, albeit the next month. (ECF 6, at 208.) At 27 worst, then, Dragasits was without a receipt for a month. [28] 1 Regardless of how long he waited for the receipt, Dragasits managed to litigate his 2 missing-receipt claim on many fronts. In March 2015, he sought relief through the prison 3 grievance system, filing two requests for the return of his property.3 (See ECF 6, at 16–17, 4 187). In August 2015, he went on to petition the California Victim Compensation and 5 Government Claims Board (ECF 6, at 94–95)—a prerequisite to suing a public employee 6 for tort damages. See Lewis v. Deems, No. 14-CV-03324-HSG (PR), 2015 WL 5738985 , 7 at *2 (N.D. Cal. Oct. 1, 2015) (citations omitted). In his Government Claim Form, he took 8 exception to Officer Rucker “confiscat[ing] claimant’s personal property without 9 providing a receipt” in violation of California law. (ECF 6, at 95.) Ironically, the missing 10 receipt was thus the impetus for Dragasits to access the courts, not an impediment to access. 11 The Claims Board ultimately rejected his claim for two reasons. First, the Board ruled it 12 untimely, as it was not “presented within six months after the event or occurrence as 13 required by law.” (ECF 6, at 164; see also id. at 165–70.) Second, the Board found the 14 application “incomplete” and requested further “substantiating documentation” and an 15 explanation of “how you determined the amount” of the claim. (Id. at 164.) Neither of these 16 deficiencies were caused by the delay in delivering the cell-search receipt—whether 17 Dragasits waited for it for hours or even a month. 18 Finally, Dragasits sued Rucker, Figueroa, and the prison in small-claims court 19 regarding his confiscated property. (See ECF 88-1, at 10–11; see also ECF 6, at 389–91.) 20 In fact, Dragasits initially prevailed, securing a $200 judgment against the prison. See 21 Dragasits v. Rucker, ROA 43, No. 37-2015-00324061-SC-SC-CTL (Cal. Super. Ct. filed [25] 3 According to Dragasits, these requests went unanswered, and the prison has no [26] record of him filing them. (ECF 6, at 17; ECF 11, at 272.) Whatever made these appeals 27 vanish, Dragasits has no evidence that their disappearance had anything to do with Rucker or Figueroa or their withholding of the search receipt. [28] 1 Aug. 7, 2015). Although he eventually lost that judgment after the prison’s successful 2 appeal, there is nothing to suggest that the late-arriving receipt inhibited Dragasits’s pursuit 3 of small-claims relief. See id. at ROA 64-65; (ECF 88-1, at 11). (Alas, the small-claims 4 court did not preserve the briefing and ruling on the prison’s appeal.) 5 Even in the light most favorable to Dragasits, defendants’ alleged receipt6 suppression did not “hinder[] his efforts to pursue a legal claim.” See Lewis, 518 U.S. 7 at 351. So summary judgment should be granted for defendants on the court-access claim. 8 D. Deliberate Indifference to a Serious Medical Need 9 Next, the Court considers Dragasits’s claim that defendant Marshal violated his 10 Eighth Amendment rights by confiscating his orthopedic shoes in the 2016 search. 11 (ECF 42, at 11–12.) An inmate establishes an Eighth Amendment violation by proving that 12 prison officials were “deliberate[ly] indifferen[t] to serious medical needs,” meaning that 13 they “intentionally den[ied] or delay[ed] access to medical care or intentionally interfer[ed] 14 with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A claim 15 of deliberate indifference has two distinct elements: (1) a “serious medical need” and 16 (2) the “deliberate indifference” of prison officials. Id. Marshal only contests the second 17 requirement. (See ECF 88, at 17–18.) She argues that she was not deliberately indifferent 18 and that Dragasits suffered no damages anyway. (ECF 88, at 17.) 19 1. Deliberate Indifference 20 To show deliberate indifference, an inmate must prove the prison official “kn[ew] 21 of and disregard[ed] an excessive risk to inmate health or safety; the official must both be 22 aware of facts from which the inference could be drawn that a substantial risk of serious [24] 25 4 This Court takes judicial notice of the docket and filings in the small-claims action. See Fed. R. Evid. 201(b)(2)&(c)(1); see also U.S. ex rel. Robinson Rancheria Citizens [26] Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[Federal courts] may take 27 notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” (citations omitted)). [28] 1 harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825 , 837 2 (1994). In other words, the official must have “subjective knowledge” of the medical risk. 3 Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015). 4 Dragasits asserts that he made Officer Marshal aware of the excessive medical risk 5 of confiscating his shoes. During the search, he told Marshal that his “orthopedic shoes 6 were approved by the clinic doctor” and that he “need[ed] them.” (ECF 11, at 88.) Another 7 inmate corroborates that Dragasits told Marshal, “[T]hose are orthopedic shoes!” 8 (ECF 104, at 28.) That same day, Dragasits filled out a written request to Marshal, seeking 9 the return of his “doctor approved orthopedic shoes.” (ECF 6, at 24.) And that evening, 10 according to Dragasits, he went by her office twice, waved the receipts through the glass 11 at her, and she twice acknowledged his receipts, saying that “she would be by [later] to 12 pick them up,” but never did. (ECF 11, at 88.) 13 Marshal does not dispute these assertions. She maintains instead that there was no 14 independent “verifiable information” of a prescription, so she concluded that the 15 orthopedic shoes were contraband. (ECF 88-3, at 3.) In particular, she contends, “Dragasits 16 could not produce any doctor’s order prescribing those shoes to him,” nor “any other 17 receipts of ownership, and there was no information in [the prison’s computer database] 18 showing that he was prescribed orthopedic shoes.” (Id.; compare ECF 88-1, at 15, 18 19 (database pre-confiscation: no mention of orthotics) with ECF 88-1, at 16–17 (database 20 post-confiscation: notations of “orthotic shoes” and “Ankle Foot Orthoses”).) In her 21 experience, inmates with valid medical prescriptions “can produce [medical] orders upon 22 request” or the prescription will be noted in the prison database. (ECF 88-3, at 3.) 23 Yet Marshal does not address Dragasits’s efforts immediately after the search to 24 retrieve his shoes: his written request to Marshal that received “no response” (ECF 6, at 24) 25 and his two attempts that evening to present his medical paperwork to her (ECF 11, at 88). 26 In addition, according to the defense’s own evidence, within three days of the search the 27 prison database had a notation reflecting Dragasits’s medical need for “orthotic shoes.” 28 (ECF 88-1, at 16–17.) Marshal offers no reason why the shoes weren’t returned to 1 Dragasits when he tried to present the receipts on the evening of the search or at least when 2 the prison database was updated with his prescription information. 3 In the light most favorable to Dragasits, a reasonable jury could find that Marshal 4 was subjectively aware of Dragasits’s serious medical risk based on his oral and written 5 statements to her, another inmate’s corroborating statement, Dragasits’s two attempts that 6 night to provide her with medical proof, and the database update in the subsequent days. 7 That jury could also conclude that Marshal ignored the risk and refused to return those 8 medically necessary shoes. See Farmer, 511 U.S. at 843 n.8 (“[A] prison official . . . would 9 not escape liability if the evidence showed that he merely refused to verify underlying facts 10 that he strongly suspected to be true, or declined to confirm inferences of risk that he 11 strongly suspected to exist. . . .”). 12 2. Damages Causation 13 Dragasits must also prove that Marshal’s deliberate “indifference was the actual and 14 proximate cause” of his damages. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 15 “[G]enerally[,] plaintiff must prove causation by expert medical testimony except where 16 there is an obvious causal relationship—one where injuries are immediate and direct.” 17 Ayobi v. Romero, No. 1:19-cv-00964-SAB (PC), 2021 WL 63275 , at *5 (E.D. Cal. Jan. 7, 18 2021). 19 Dragasits alleges that the confiscation of his orthopedic shoes led to two types of 20 damages: (1) Dragasits’s “deformed toes and bony protrusions caused ‘extreme pain’” 21 without his prescribed shoes, and “his condition became progressively worse” (ECF 42, 22 at 16); and (2) “[m]onths later” he incurred “serious damage to his Achilles tendon,” which 23 ultimately required surgery. (Id. at 10, 12.) He offers no expert medical testimony on 24 damages causation. 25 At least for Dragasits’s first species of claimed damages—his daily pain without his 26 prescribed shoes—a reasonable juror could conclude that his injuries were sufficiently 27 “immediate and direct” to establish causation. See Ayobi, 2021 WL 63275 , at *5. Dragasits 28 attests that “without the orthopedic shoes [his] feet hurt badly when [he] walk[ed].” 1 (ECF 6, at 6.) He repeatedly informed prison personnel that he would remain “in pain 2 until[] they [the shoes] are replaced.” (See id.; see also id. at 24 (claiming the shoe 3 confiscation led to the “pain [he is] suffering each day” that he is “without [his] 4 orth[oped]ic shoes”); id. at 117 (complaining that “not having these shoes to wear [is] 5 causing [his] feet an enormous amount of pain each and every day”).) And even in the 6 medical records Marshal relies on, Dragasits reported he could only jog “once in a while 7 without any problem” and “would experience some dull to sharp pain afterwards.” 8 (ECF 88-1, at 21.) Thus, in the light most favorable to Dragasits, a jury could reasonably 9 find that depriving him of his medical shoes caused the “‘unnecessary and wanton infliction 10 of pain’ proscribed by the Eighth Amendment.” See Estelle, 429 U.S. at 104 (citation 11 omitted). 12 The lack of expert causation evidence is harder to overcome in establishing 13 Dragasits’s other shoe-related damages—the rupture of his Achilles tendon months after 14 the shoe confiscation. When injuries “are of such a character as to require skilled and 15 professional persons to determine the cause and extent thereof, they must be proved by the 16 testimony of medical experts.” Tesone v. Empire Mktg. Strategies, 942 F.3d 979 , 997 17 (10th Cir. 2019). Dragasits has no such expert evidence. 18 Even if the Court overlooks the lack of expert testimony, it is unclear how Dragasits 19 proves causation for his Achilles tear. His shoes were confiscated in February 2016 (see, 20 e.g., ECF 88, at 60), and he was issued new orthopedic inserts and new orthopedic shoes 21 on July 1 and July 5, 2016, respectively. (ECF 88-1, at 27, 30.) The record is conflicting as 22 to whether the injury occurred before or after he received this new medical footwear. 23 (Compare ECF 88-1, at 33, 36 (tendon injury on “7/15/16”) with ECF 6, at 333 24 (“February 2016”); ECF 104, at 103 (“March 2016”); id. at 94 (around June 2016).) More 25 importantly, it is unclear how this injury occurred. Although Dragasits alleges that the 26 standard-issue shoes he was forced to wear “agitated the back of my ankle” leading to “an 27 eventual rupture (left foot)” (ECF 6, at 104), he also reported to doctors that the Achilles 28 tear happened after “someone kick[ed] me on [the] back of my heel.” (ECF 88-1, at 33, 36; 1 cf. ECF 104, at 94 (Dragasits “felt like when he was walking . . . somebody hit him in the 2 back of his ankle”).) 3 Setting aside the uncertain method and timing of the injury, Dragasits simply offers 4 no evidence—other than his own lay opinion (see ECF 6, at 104)—linking his medical5 shoe deprivation to his tendon rupture. That thin evidentiary reed will not support a 6 causation finding for a complex injury such as this, which ultimately required surgery. See, 7 e.g., Manriquez v. Town of Superior, No. CV-18-02026-PHX-DWL, 2020 WL 5544407 , 8 at *16 (D. Ariz. Sept. 16, 2020) (precluding damages for a “torn labrum or other long-term 9 shoulder damage” when there were no “medical witnesses who might tie the shoulder 10 damage reflected in the MRI to [plaintiff’s] encounter with Defendants,” as it “would be 11 ‘mere speculation’ for a juror to conclude this damage was caused by the encounter”); 12 Paramo v. City of Morgan Hill, No. C01-0825MMC(PR), 2002 WL 1497521 , at *4 (N.D. 13 Cal. July 9, 2002) (granting summary judgment against plaintiff because, among other 14 things, “plaintiff presents no medical evidence” that his “torn ligaments” and other injuries 15 were “the result of defendants’ actions”). 16 Although Dragasits has not shown that Marshal’s actions caused his Achilles rupture 17 or any long-term tendon damage, he should remain “free to argue that he experienced pain 18 and suffering” because he was deprived of his orthopedic shoes. See Manriquez, 2020 WL 19 5544407, at *16. Thus, summary judgment should be granted for defendant Marshal only 20 to the limited extent that Dragasits cannot recover damages for his torn Achilles tendon. 21 E. Failure to Summon Medical Care 22 Finally, we turn to Dragasits’s claim against Marshal for failing to summon medical 23 care during the 2016 cell search. Under California law, a prison official is liable if the 24 official “knows or has reason to know that the prisoner is in need of immediate medical 25 care and . . . fails to take reasonable action to summon such medical care.” Cal. Gov’t Code 26 § 845.6. Liability under this statute is limited to “serious and obvious medical conditions 27 requiring immediate care.” Castaneda v. Dep’t of Corr. & Rehab., 212 Cal. App. 4th 1051 , [28] 1 1074 (2013). Marshal argues that Dragasits’s “condition did not rise to the level which 2 required Marshal to summon medical assistance.”5 (ECF 88, at 19.) 3 In the light most favorable to this pro se civil-rights plaintiff, during the 2016 search 4 Dragasits told the guards in a hoarse voice, “I am sick.” (ECF 88-1, at 12.) One of the 5 guards responded, “Well, you could be faking that.” (Id.) Yet Dragasits was “incapable of 6 getting up,” and “it was only because the [officers] helped [him] out into the dayroom” that 7 he managed to leave his cell. (Id.) Even so, he was “not able to stand for long,” and he “had 8 to go back down . . . to [his] bed.” (Id.) 9 The above recitation—which Marshal largely disputes (see ECF 88-3, at 4)—is 10 sufficient to survive summary judgment. Courts have found failure-to-summon claims to 11 be triable when plaintiffs needed assistance walking and their ailing state was announced 12 or otherwise obvious. See Zeilman v. Cnty. of Kern, 168 Cal. App. 3d 1174, 1187 (1985) 13 (finding a triable question of fact on “whether plaintiff’s use of crutches and her apparently 14 agitated, emotional, and weakened condition should have given rise to knowledge of her 15 need for immediate medical care”); Hart v. Orange Cnty., 254 Cal. App. 2d 302 , 308 16 (1967) (affirming plaintiff’s judgment in a failure-to-summon case in which jail 17 “custodians were helping [the arrestee/decedent] to walk” when he arrived at the jail, an 18 officer was specifically told the arrestee “was sick,” and the arrestee later lost 19 consciousness). [22] 5 In their brief, defendants also mention that “there is no evidence that Plaintiff was 23 harmed by the alleged failure to summon medical care.” (ECF 88, at 19.) If this conclusory statement were intended as a stand-alone argument about the lack of damages, the Court [24] would not consider it. This passing reference—without analysis or citation to the record— 25 is too undeveloped to meet defendants’ burden on summary judgment. See Wells Fargo Bank, N.A. v. Renz, 795 F. Supp. 2d 898, 911 (N.D. Cal. 2011) (noting that, despite “a [26] string citation to various cases and California civil jury instructions,” defendants’ failure 27 to provide “any explanation or analysis of how these authorities support their position” or “citations to the record to support their factual assertions” is “improper” and fails “to carry [28] 1 The defense points to several precedents involving deficient failure-to-summon 2 claims, but each of those cases involved plaintiffs who walked without assistance and had 3 only minor (or nonobvious) medical complaints. See Anaya v. Marin Cnty. Sheriff, 4 No. 13-CV-04090-WHO, 2015 WL 1407362 , at *6 (N.D. Cal. Mar. 27, 2015) (dismissing 5 plaintiff’s failure-to-summon claim because she failed to allege that her medical needs 6 were “obvious to the deputies”); Lawson v. Super. Ct., 180 Cal. App. 4th 1372 , 1385 7 (2010) (holding that “the denial of [personal] medications and a breast pump . . . does not 8 amount to neglect of a serious and obvious medical condition”); Watson v. California, [9] 21 Cal. App. 4th 836 , 842–43 (1993) (affirming dismissal of inmate’s failure-to-summon 10 claim because he “was able to walk,” merely “complained that his ankle was tender,” 11 “[n]one of the doctors who examined [him] recognized the extent of the injury,” and prison 12 officials in fact “provided prompt medical care”); Lucas v. City of Long Beach, 60 Cal. 13 App. 3d 341, 350 (1976) (inmate “manifested only the symptoms of intoxication”); Kinney 14 v. Cnty. of Contra Costa, 8 Cal. App. 3d 761, 770 (1970) (“A jail prisoner’s request . . . for 15 something for a headache cannot reasonably be deemed notice ‘that the prisoner is in need 16 of immediate medical care.’”). 17 Thus, Marshal has failed to establish that there is no genuine dispute as to the 18 material facts, and summary judgment should be denied on the failure-to-summon claim. 19 CONCLUSION 20 Accordingly, the Court recommends entering the following orders: 21 1. Summary judgment is GRANTED for defendants Rucker and Figueroa on all 22 claims against them, including the: 23 a. First Amendment retaliation claim; and 24 b. First Amendment access-to-courts claim. 25 2. Summary judgment is GRANTED IN PART and DENIED IN PART for 26 defendant Marshal as to the Eighth Amendment deliberate-indifference claim. 27 Specifically, Dragasits is foreclosed from recovering damages for his torn [28] 1 Achilles tendon. Marshal’s summary-judgment motion on this claim is otherwise 2 denied. 3 3. Summary judgment is DENIED as to the California state-law claim against 4 Marshal for failing to summon medical care. 5 The parties have 14 days from service of this report to file any objections to it. 6 || See 28 U.S.C. § 636 (b)(1). The party receiving an objection has 14 days to file any 7 response. See Fed. R. Civ. P. 72(b)(2). 8 ||Dated: August 19, 2022 9 | □□ 10 Hon. ndrew G. Schopler United States Magistrate Judge