Garcia v. Sleeley

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUBEN DARIO GARCIA, JR., Case No.: 14-CV-1525 JLS (RBM)

12 Plaintiff, ORDER: (1) OVERRULING 13 v. PLAINTIFF’S OBJECTIONS, (2) ADOPTING REPORT AND 14 SLEELEY, et al., RECOMMENDATION, AND 15 Defendants. (3) GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY 16 JUDGMENT 17 (ECF Nos. 160, 168, 173, 176) 18 19 Presently before the Court are the Motions for Summary Judgment filed by 20 Defendants Pamela Velardi (ECF No. 160) and E. A. Canlas, M.D.; Robert Walker, D.O.; 21 A. Denbela; P. Newton, M.D.; M. Glynn; and K. Seeley, D.O. (erroneously sued as 22 “Sleeley”) (ECF No. 168) (together, the “Motions”). Also before the Court is Magistrate 23 Judge Ruth Bermudez Montenegro’s Report and Recommendation (“R&R,” ECF No. 173) 24 advising the Court to grant the Motions, as well as Plaintiff’s Objections to the R&R 25 (“Objs.,” ECF No. 176) and Defendant Velardi’s Reply to Plaintiff’s Objections (ECF No. 26 177). Having considered Magistrate Judge Montenegro’s recommendations, the Parties’ 27 arguments, the record, and the law, the Court OVERRULES Plaintiff’s Objections, 28 ADOPTS the R&R in its entirety, and GRANTS Defendants’ Motions. 1 BACKGROUND 2 Magistrate Judge Montenegro’s R&R contains a thorough and accurate recitation of 3 the factual and procedural histories underlying the instant Motions. See R&R 2–4, 7–15. 4 This Order incorporates by reference the background as set forth therein. 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 7 court’s duties in connection with a magistrate judge’s report and recommendation. The 8 district court must “make a de novo determination of those portion of the report to which 9 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United 11 States v. Raddatz, 447 U.S. 667, 673–76 (1980); United States v. Remsing, 874 F.2d 614, 12 617 (9th Cir. 1989). In the absence of timely objection, however, the Court “need only 13 satisfy itself that there is no clear error on the face of the record in order to accept the 14 recommendation.” Fed. R. Civ. P. 72 advisory committee’s note to 1983 amendment 15 (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United 16 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he district judge must 17 review the magistrate judge’s findings and recommendations de novo if objection is made, 18 but not otherwise.”). 19 ANALYSIS 20 At summary judgment, only Plaintiff’s second cause of action for retaliation after 21 exercising his First Amendment right to free speech and fourth cause of action for 22 conspiracy to violate his First Amendment rights remain. See ECF No. 136 at 17–18. 23 Defendants have moved for summary judgment in their favor as to both these causes of 24 action. See generally ECF Nos. 160, 168. Magistrate Judge Montenegro recommends that 25 the Court grant Defendants’ Motions. See R&R at 34. Having reviewed the R&R, the 26 Court finds that it is well-reasoned and contains no clear error. 27 Plaintiff, however, raises several objections to Magistrate Judge Montenegro’s 28 recommendation. See generally Objs. In accordance with 28 U.S.C. § 636(b)(1), the Court 1 reviews de novo those portions of Magistrate Judge Montenegro’s R&R to which Plaintiff 2 has objected. 3 I. Magistrate Judge Montenegro’s Identification of Plaintiff’s Causes of Action 4 Plaintiff first objects that Magistrate Judge Montenegro has “incorrectly identif[ied] 5 Garcia’s actual Retaliation and 1983 Conspiracy causes of action made against defendants 6 being advanced in th[is] civil matter.” Objs. at 2. Plaintiff elaborates that he “alleges that 7 moving defendants conspired to (and did) retaliate against [him] for filing grievances, 8 complaints, and a habeas petition with the local court, by cancelling and discounting his 9 entire medically prescribed necessary pain management treatment medications and/or by 10 denying his formal request for said treatment to be renew[ed] or be prescribed . . . , given 11 his serious medical needs, via pretext, and while failing to advance a legitimate penological 12 goal.” Id. 13 On de novo review, the Court determines that Magistrate Judge Montenegro has 14 correctly identified Plaintiff’s causes of action. In Plaintiff’s operative Amended 15 Complaint, his second cause of action alleges that Defendants acted “in retaliation due to 16 Garcia’s constitutionally protected conduct activities such as ‘free speech’ and ‘petitioning 17 the government by way of inmate grievances or filing suit with the courts and seeking 18 redress of his filings without being subjected to retaliatory acts.’” ECF No. 43 (“Am. 19 Compl.”) at 28.1 As for his fourth cause of action, Plaintiff alleges that Defendants’ 20 “individual acts or omissions were carr[ied] out by them jointly/together, while acting in 21 concer[t]/fashion and manner from which Garcia can (and does) establish the exist[e]nce 22 of an ‘agreement[,]’ a form of ‘meeting of minds’ to violate Garcia’s civil rights . . . and 23 vested U.S. Constitutional rights to free speech[ and] freedom from retaliation.” Id. at 30. 24 In ruling on Defendants’ motions to dismiss, the Court allowed to proceed Plaintiff’s 25 second cause of action for First Amendment Retaliation, see ECF No. 136 at 12, and fourth 26 27 1 To avoid ambiguity, pin citations to Plaintiff’s Amended Complaint refer to the CM/ECF page numbers 28 1 cause of action for conspiracy to violate Plaintiff’s civil rights to the extent it was 2 predicated on Plaintiff’s allegations that Defendants “acted in concert in cancelling 3 Plaintiff’s treatment and falsified their reasons for doing so.” See id. at 13–14. 4 Magistrate Judge Montenegro’s R&R carefully identifies Plaintiff’s surviving 5 causes of action based on Plaintiff’s characterization in his opposition to Defendants’ 6 Motions. See R&R at 18 (“Plaintiff claims that Velardi cancelled Plaintiff’s Gabapentin 7 prescription in retaliation for Plaintiff filing medical grievances and a state habeas 8 petition.”) (citing ECF No. 170 at 16–17); id. at 22 (“Plaintiff claims that Newton cancelled 9 Plaintiff’s Gabapentin prescription in retaliation for Plaintiff filing medical grievances and 10 a state habeas petition.”) (citing ECF No. 170 at 16–17); id. at 24 (“Plaintiff claims that 11 Denbela furthered the retaliatory actions taken against him by denying the first level review 12 of appeal RJD HC 12046389.”) (citing ECF No. 170 at 20); id. at 26 (“Plaintiff claims that 13 Walker, like Denbela, also retaliated against him by denying the first level review of appeal 14 RJD HC 12046389, and by denying the first level review of appeal RJD HC 12046765.”) 15 (citing ECF No. 170 at 20); id. at 27 (“Plaintiff claims that Seeley furthered the retaliatory 16 actions taken against him by denying the second level review of appeal RJD HC 17 12046765.”) (citing ECF No. 170 at 23); id. at 28 (“Plaintiff claims that Glynn furthered 18 the retaliatory actions taken against him by denying the second level review of appeal RJD 19 HC 12046765.”) (citing ECF No. 170 at 23); id. at 32 (“Plaintiff alleges that on May 10, 20 2012, Velardi ordered lab work to test Plaintiff’s blood for Gabapentin levels and Newton 21 ordered the Plaintiff be tapered off Gabapentin, and both used the results of that lab work 22 to justify their decisions retroactively. . . . He further asserts that each subsequent reviewer 23 or medical examiner was acting in concert to further the retaliatory actions of Velardi and 24 Newton in cancelling his Gabapentin prescription.”) (citing ECF No. 170 at 19–23, 24, 46). 25 On de novo review, the Court determines that Magistrate Judge Montenegro 26 correctly identified and characterized Plaintiff’s surviving causes of action. The Court 27 therefore OVERRULES Plaintiff’s first objection. 28 / / / 1 II. Magistrate Judge Montenegro’s Recitation of Plaintiff’s Evidence 2 Plaintiff next objects that Magistrate Judge Montenegro “has incorrectly identif[ied] 3 and/or failed to place in proper form all evidence setting forth the specific facts in 4 [Plaintiff’s] Opposition relevant and material to Garcia’s actual Retaliation and Conspiracy 5 causes of action made against defendants.” Objs. at 2. Per Federal Rule of Civil Procedure 6 52(a)(3), Magistrate Judge Montenegro was not required to state her findings of fact, much 7 less “place in proper form” Plaintiff’s proffered material facts. See Objs. at 2. Nonetheless, 8 Magistrate Judge Montenegro devoted a significant amount of effort to detailing the 9 evidence offered by both Defendants and Plaintiff. See R&R at 7–15. Plaintiff identifies 10 no errors in Magistrate Judge Montenegro’s summary of his proffer,2 and the Court 11 identifies no material errors on de novo review. Accordingly, the Court OVERRULES 12 Plaintiff’s second objection. 13 III. Magistrate Judge Montenegro’s Standards of Review 14 Plaintiff objects that Magistrate Judge Montenegro has “failed to correctly identify 15 and/or place in proper form those specific standards of review set forth by the U.S. Supreme 16 Court and applicable Federal Rules of Civil Procedure which [shall] govern these U.S. 17 District Court Summary Judgment proceedings.” Objs. at 2. Plaintiff therefore requests 18 that “this court should faithfully adhere to the standard of review set forth by Garcia Motion 19 in Opposition in resolving moving defendants[’] multiple Motions for Summary 20 Judgment.” Id. at 3. 21 Magistrate Judge Montenegro sets forth in her R&R a thorough and accurate 22 recitation of the legal standard governing summary judgment. See R&R at 4–7. Plaintiff 23 has not identified a particular alleged defect with Magistrate Judge Montenegro’s standard. 24 See generally Objs. at 2–3. In comparing Plaintiff’s proffered standard, see ECF No. 170 25 at 17–18, with Magistrate Judge Montenegro’s, see R&R at 4–7, the Court identifies no 26 27 2 To the extent Plaintiff identifies specific “factual disputes,” the Court addresses those separately below. 28 1 differences that would compel a change in Magistrate Judge Montenegro’s or this Court’s 2 conclusions. Accordingly, the Court OVERRULES Plaintiff’s third objection. 3 IV. Magistrate Judge Montenegro’s Denial of Plaintiff’s Motion Requesting Appointment of Expert Witnesses 4 5 Plaintiff challenges Magistrate Judge Montenegro’s decision to “DENY Garcia’s 6 timely and properly made request for expert designations, so he could be able to properly 7 rebut defendants[’] expert evidence at summary judgment, by introducing his own expert 8 declaratory evidence at these proceedings.” Objs. at 3. 9 Plaintiff filed his Ex Parte Application Motion Requesting the Appointment of 10 Expert Witnesses on September 13, 2018. See ECF No. 129. Magistrate Judge 11 Montenegro denied his motion on October 23, 2018, see generally ECF No. 137, ultimately 12 concluding that, “at this point[,] appointing an expert witness in inappropriate,” but 13 “recogniz[ing] the possibility that[,] at a later stage in this litigation, such as at trial, issues 14 may arise that require the appointment of an expert witness.” Id. at 4. 15 Plaintiff’s objection is not properly before the Court. Pursuant to Federal Rule of 16 Civil Procedure 72(a), a party may object to a non-dispositive pre-trial order of a magistrate 17 judge within fourteen days after service of the order. Accordingly, Plaintiff’s June 28, 18 2019 objection to Magistrate Judge Montenegro’s October 23, 2018 order is untimely. In 19 any event, Magistrate Judge Montenegro’s analysis of the factors outlined in Gorton v. 20 Todd, 793 F. Supp. 2d 1171 (E.D. Cal. 2011), is not “clearly erroneous or . . . contrary to 21 law,” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A), and the Court would not reach a 22 different conclusion on de novo review. Accordingly, the Court OVERRULES Plaintiff’s 23 fourth objection. 24 V. Magistrate Judge Montenegro’s Findings of Fact 25 Plaintiff objects that Magistrate Judge Montenegro “failed to place in proper form 26 all factual dispute[s] relevant to Garcia’s causes of action against defendants, in [her] 27 resolution of defendants[’] motions for summary judgment before the court or [her] 28 determination of whether ‘the evidence is such that a reasonable jury could return a 1 verdic[t] for the non-moving party.’” Objs. at 4. Although far from clear, Plaintiff appears 2 to object to certain findings of fact reached by Magistrate Judge Montenegro. See id. at 3 4–17. The Court addresses each of these “relevant factual disputes” in turn. 4 A. Use of Anti-Depressants for Pain Management 5 Plaintiff’s first factual dispute appears to be that Defendant Glynn, in performing the 6 second-level review of Appeal RJD HC 11022222, learned that Plaintiff was diagnosed as 7 suffering from chronic depression and knew that the 2009 pain management guidelines 8 prohibited use of anti-depressants for pain management if the patient was suffering from 9 depression, yet noted that Plaintiff has been prescribed adequate pain medication, including 10 Indomethacin and Nortriptyline, which are anti-depressants. See Objs. at 4–6. 11 Plaintiff nowhere indicates that Magistrate Judge Montenegro failed to account for 12 these facts. Cf. R&R at 9 (“Glynn noted that Plaintiff had been seen by an orthopedic 13 specialist on September 22, 2011, was prescribed Gabapentin, Indomethacin, and 14 Nortriptyline, had been examined by several doctors, and had been prescribed adequate 15 pain medication.”) (citing ECF No. 168-6 ¶ 14 & Ex. E). Rather, taking into consideration 16 these facts, Magistrate Judge Montenegro concluded that “Plaintiff has failed to introduce 17 evidence sufficient to show a genuine dispute of material fact as to whether [Glynn]’s 18 decision was substantially motivated by Plaintiff’s First Amendment conduct,” R&R at 29, 19 and, consequently, “Glynn has demonstrated that Plaintiff cannot carry his burden at trial 20 of proving retaliatory motive.”3 Id. at 28. 21 On de novo review, the Court agrees with Magistrate Judge Montenegro. 22 Accordingly, the Court OVERRULES Plaintiff’s first factual objection. 23 B. Falsification of Records Behind May 10, 2012 Cancellation of Gabapentin 24 Plaintiff’s second factual dispute appears to concern his contention that Defendants 25 Velardi and Newton cancelled his Gabapentin prescription on May 10, 2012, in retaliation 26 27 3 To the extent Plaintiff objects to Magistrate Judge Montenegro’s legal analysis, the Court addresses that 28 1 for Plaintiff’s May 7, 2012 filing of a habeas petition, and then drew bloodwork on May 16, 2 2012, when they knew that Plaintiff’s blood serum Gabapentin levels would be low as a 3 result of the cancellation of his prescription, to create a false rationalization that his 4 Gabapentin was properly cancelled because the lab results supported that Plaintiff was not 5 taking the Gabapentin as prescribed. See Objs. at 6–7. 6 Magistrate Judge Montenegro concluded, based on Defendant Velardi’s sworn 7 declaration, that Defendant “Velardi did not place any order to taper or stop Plaintiff’s 8 Gabapentin or other medication on May 10, 2012.” R&R at 19 (citing ECF No. 160-3 ¶ 6). 9 Instead, Defendant “Velardi only requested an order that a lab study be performed to help 10 determined the Gabapentin levels in his system.” Id. (citing ECF No. 160-3 ¶ 4). It was 11 “[a]nother healthcare provided, Newton, [who] ordered the taper-off of Gabapentin.” Id. 12 (citing ECF No. 160-3 ¶ 6 & Ex. 4; ECF No. 168-7 ¶ 4 & Ex. A). Defendants Velardi and 13 Newton both declared not to have conspired to deny Plaintiff medical care. Id. at 32–33 14 (citing ECF No. 160-3 ¶ 16; ECF No. 168-7 ¶ 9). 15 Plaintiff offers no medical records demonstrating that Defendant Velardi ordered 16 Plaintiff’s Gabapentin prescription stopped or showing that Defendants Velardi and 17 Newton ever interacted in their treatment of Plaintiff. In short, Plaintiff offers no evidence 18 supporting their alleged retaliation or conspiracy aside from the uncontested facts that 19 Plaintiff filed a habeas petition on May 7, 2012, and that Defendant Newton cancelled 20 Plaintiff’s Gabapentin prescription on May 10, 2012. See R&R at 21, 24. As Magistrate 21 Judge Montenegro correctly concludes, however, “circumstantial evidence of timing, 22 without more, is insufficient” to establish retaliatory motive. See id. at 17 (citing Pratt v. 23 Rowland, 65 F.3d 802, 808 (9th Cir. 1995)); see also id. at 21, 24. 24 On de novo review, the Court therefore agrees with Magistrate Judge Montenegro 25 and OVERRULES Plaintiff’s second factual objection. 26 C. Defendant Velardi’s Knowledge of Plaintiff’s Habeas Petition 27 Plaintiff’s third factual dispute appears to be with Defendant Velardi’s sworn 28 statement that Plaintiff did not make her aware of his May 7, 2012 habeas petition at the 1 May 10, 2012 appointment. See Objs. at 7–8. Plaintiff contends that he informed her about 2 the May 7, 2012 habeas petition and his motivations for filing it at the May 10, 2012 3 appointment and that he indicated that he would be filing civil litigation. Id. at 8. 4 Magistrate Judge Montenegro considered Plaintiff’s sworn statement that he told 5 Defendant Velardi about the habeas petition at the May 10, 2012 examination. See R&R 6 at 21 (citing ECF No. 170 at 45). Magistrate Judge Montenegro noted, however, that 7 “during his deposition, Plaintiff made contradictory claims and admitted he was not sure if 8 Velardi was mentioned in his habeas petition at all, and that the crux of his retaliation claim 9 was Velardi’s action after he told her about his grievances and court actions.” Id. (citing 10 ECF No. 170 at 185). Magistrate Judge Montenegro did not err in taking Plaintiff’s 11 contradictory sworn testimony into account. 12 Further, even if Plaintiff did tell Defendant Velardi about the habeas petition at the 13 May 10, 2012 examination, Plaintiff introduced no additional evidence tending to show 14 that Defendant Velardi acted with a retaliatory motive. As Magistrate Judge Montenegro 15 correctly concluded, “circumstantial evidence of timing alone is insufficient” to make the 16 requisite showing to survive summary judgment. See R&R at 21 (citing Pratt, 65 F.3d at 17 808). Accordingly, the Court OVERRULES Plaintiff’s third factual objection. 18 D. First-Level Review of Appeal RJD HC 12046389 19 Although not entirely clear, Plaintiff’s fourth factual dispute appears to concern 20 Defendants Denbela and Walker’s denials of Appeal RJD HC 12046389. See Objs. at 21 8–11. Magistrate Judge Montenegro carefully and thoroughly reviewed Defendants 22 Denbela’s and Walker’s reviews of Appeal RJD HC 12046389. See R&R at 11–12. Aside 23 from the denials themselves, Plaintiff introduced no additional evidence of retaliatory 24 motive. As Magistrate Judge Montenegro properly concluded, “the denial of a grievance 25 alone by itself does not amount to a constitutional violation.” Id. at 25, 27 (citing Dicey v. 26 Hanks, No. 2:14-cv-2018 JAM AC P, 2015 WL 4879627, at *5 (E.D. Cal. Aug 14, 2015)). 27 Accordingly, the Court OVERRULES Plaintiff’s fourth factual objection. 28 / / / 1 E. Second-Level Review of Appeal RJD HC 12046389 2 Plaintiff’s fifth factual dispute appears to concern the conclusions of the second- 3 level review of RJD HC 12046389, specifically that Plaintiff received extensive medical 4 examinations regarding his claimed medical issues and had no functional limitations in his 5 wrists, that there was no medical indication for Gabapentin in Plaintiff’s case, and that 6 Plaintiff initially refused alternative medications but eventually agreed to try 7 acetaminophen. See Objs. at 12–13. 8 Again, Magistrate Judge Montenegro carefully reviewed Defendant Seeley’s 9 second-level review of Appeal RJD HC 12046389. See R&R at 11–12, 27–28. Review of 10 Defendant Seeley’s second-level denial indicates that he relied upon medical records from 11 Defendants Denbela and Velardi. See ECF No. 168-8 Ex. K at 88. Defendant Seeley 12 therefore relied on the medical judgment of himself and Defendants Denbela and Velardi 13 in denying Plaintiff’s requests for Gabapentin and to discipline medical personnel denying 14 him treatment out of retaliation. As Magistrate Judge Montenegro correctly concludes, to 15 the extent Plaintiff attempts to prove a retaliatory motive based on speculation or the denial 16 itself, these are insufficient to survive summary judgment. See R&R at 28 (citing Wood v. 17 Yordy, 753 F.3d 899, 904 (9th Cir. 2014); Dicey, 2015 WL 4879627, at *5). The Court 18 therefore agrees with Magistrate Judge Montenegro on de novo review. 19 To the extent Plaintiff claims that Defendant Velardi fabricated the underlying 20 records to falsely indicate that Plaintiff rejected a prescription she offered for Tegretol, see 21 Objs. at 12–13, Magistrate Judge Montenegro addressed Plaintiff’s argument and found 22 that the psychiatry progress note on which Plaintiff relies does not support his contention 23 because that record appears to address only Plaintiff’s psychiatric medications. See R&R 24 at 21–22. On de novo review, the Court agrees with Magistrate Judge Montenegro. 25 Accordingly, the Court OVERRULES Plaintiff’s fifth factual objection. 26 F. Appeal RJD HC 12046765 27 Finally, although not entirely clear, Plaintiff’s sixth factual objection appears to 28 concern Appeal RJD HC 12046765. Objs. at 13–17. Again, Magistrate Judge Montenegro 1 carefully reviewed Appeal RJD HC 12046765 at all levels of review. See R&R at 12–13; 2 see also id. at 19, 26, 28–29. Having reviewed the R&R and underlying record, the Court 3 agrees with Magistrate Judge Montenegro’s analysis on de novo review and therefore 4 OVERRULES Plaintiff’s sixth factual objection. 5 VI. Magistrate Judge Montenegro’s Resolution of Disputed Facts 6 Plaintiff objects that Magistrate Judge Montenegro “erroneously contends to this 7 court that Garcia argues he has provided evidence sufficient to show a dispute of material 8 facts, specifically ‘that moving defendants[’] alleged falsification of his medical records 9 show they acted in concert to retaliate against him for exercisin[g] his First Amendment 10 rights.’” Objs. at 17. Specifically, Plaintiff contends that “he has set forth specific facts 11 showing the existence of dispute[s] in material facts relevant to his retaliation and 12 conspiracy causes of acti[on],” namely: 13 (1) “on 5/7/12, Garcia filed with the local court a Habeas Petition,” id. at 17; 14 (2) “on 5/10/12 defendants cancel[led] Garcia’s entire pain management 15 treatment in the form of prescription for the medication Gabapentin,” id.; 16 (3) “defendants[’] alleged justifications for cancelling on 5/10/12 Garcia’s 17 treatment have been shown and proven to be false,” id. at 17–18; 18 (4) “defendants . . . jointly and in concert t[ook] specific acts,” id. at 18; 19 (5) “Departmental CPHCS staff carr[ied o]ut these defendants[’] physicians 20 ORDERS,” id.; 21 (6) the Court may infer from this evidence that “defendants knowingly carr[ied 22 o]ut these joined and in concert acts to cause Garcia to have low serum levels for the 23 medication Gabapentin, . . . to ensure that they could retain and use a lab study report . . . 24 as a ‘cover[/]ruse’ through which they could ‘support their allegations to the Department 25 CPHCS that Garcia was not taking his meds as prescribed . . . and/or justify to the 26 Department the 5/10/12 cancellation of Garcia’s treatment,’” id.; 27 (7) “defendants jointly and in concert, between 5/10/12 and 5/28/14, did routinely 28 DENY Garcia’s numerous requests made for pain management treatment,” id. at 18–19; 1 (8) “defendants did not offer [Plaintiff] the medications NSAIDs or Tegretol as 2 chronic pain treatment and . . . [Plaintiff] filed multiple grievances with the Department 3 CPHCS,” id. at 19; 4 (9) the Court may infer from this evidence that “defendants jointly and in concert 5 knowingly made these false allegations to the Department CPHCS with the specific intent 6 ‘to DENY Garcia’s formal request for treatment,’” id.; and 7 (10) “Garcia[’s] evidence also establishes the existence of dispute[d] . . . material 8 facts relevant to his causes of action for retaliation and conspiracy against defendants,” as 9 identified in his fifth objection. Id. at 19–20. 10 As for Plaintiff’s first and second points, it is undisputed that Plaintiff filed a habeas 11 petition on May 7, 2012. It is also undisputed that Plaintiff’s Gabapentin prescription was 12 cancelled on May 10, 2012, although the evidence reveals that it was Defendant Newton, 13 not Defendant Velardi, who ordered the Gabapentin taper on May 10, 2012. See ECF No. 14 168-7 Ex. A at 9. 15 As for Plaintiff’s third point, Magistrate Judge Montenegro rejected this argument. 16 See R&R 10, 23. A urinalysis from January 4, 2012, showed that Plaintiff “had an 17 incredibly high gabapentin level in his urine,” which could be an indication that Plaintiff 18 was “‘divert[ing]’ [his] gabapentin prescription[] by spitting it out, collecting large 19 amounts of the medication, and then taking it to get ‘high.’” ECF No. 168-7 ¶ 6. The 20 May 16, 2012 blood test ordered by Defendant Velardi therefore did not serve as the 21 justification for Defendant Newton’s May 10, 2012 taper of Plaintiff’s Gabapentin. 22 Magistrate Judge Montenegro also rejected Plaintiff’s fourth point, noting that 23 Defendants Velardi and Newton both declared that they did not work in agreement with 24 each other or any other health care providers to deny Plaintiff medical care or to cancel his 25 prescriptions. See R&R at 32–33 (citing ECF No. 160-3 ¶ 16; ECF No. 168-7 ¶ 9). Plaintiff 26 introduced no concrete evidence to the contrary. Id. at 32–34. 27 As for Plaintiff’s fifth point, it does not appear to be disputed that Plaintiff’s 28 Gabapentin was indeed tapered on May 10, 2012. 1 Regarding Plaintiff’s sixth point, based on the above, it cannot be inferred that 2 Defendants Velardi and Newton acted in concert to cancel Plaintiff’s Gabapentin on 3 May 10, 2012, and to falsify a test result on May 16, 2012, to justify the prior, retaliatory 4 cancellation of his prescription. See R&R at 18–24, 32–34; see also infra Section VII.B. 5 With regard to Plaintiff’s seventh point, Magistrate Judge Montenegro detailed the 6 various medical appointments an appeals during the relevant time frame. See R&R at 8– 7 13, 18–19, 23, 25, 26, 27, 28–29, 30. Although Plaintiff may have been denied the 8 Gabapentin he sought, in the end, the records cumulatively show that Plaintiff was seen by 9 medical providers who prescribed pain management in their medical judgment based on 10 their review of Plaintiff, his test results, and his medical records. 11 Plaintiff’s eighth point and tenth points are addressed above. See supra Section V. 12 Finally, as to Plaintiff ninth point, based on the above, it cannot be inferred that 13 Defendants acted in concert to falsify Plaintiff’s medical records to deny him medical 14 treatment. See R&R at 18–31, 32–34; see also infra Section VII.B. 15 For all these reasons, the Court OVERRULES Plaintiff’s sixth objection. 16 VII. Magistrate Judge Montenegro’s Recommendation That the Court Grant the Motions 17 18 Finally, Plaintiff objects that Magistrate Judge Montenegro “erroneously 19 recommend[s] for this court to GRANT moving defendants[’] summary judgment 20 motions.” Objs. at 20. Specifically, Plaintiff contends that he has introduced evidence 21 sufficient to meet all elements of his remaining claims. See generally id. at 20–24. 22 A. Second Cause of Action: First Amendment Retaliation 23 Plaintiff objects that he has introduced evidence that “between 5/10/12 and 5/28/14 24 Garcia was left without any form of pain treatment in the form of known pain reliever[]s 25 and to endure daily pain and suffering caused by those severely painful symptom[]s he was 26 experiencing caused by his carpal tunnel condition,” Objs. at 20, which “is the type of harm 27 which is more than minimal.” Id. at 21. Further, “defendants[’] adverse actions were 28 carr[ied o]ut because of Garcia’s 5/7/12 filing of a Habeas Petition” and “defendants have 1 been shown to ha[ve] been clearly aware that Garcia had filed grievances with the 2 Department CPHCS against them and accusing them of violating his civil rights during 3 those times they either acted as his PCP and/or formally redressed his grievance appeal 4 issues and requests for treatment.” Id. Plaintiff’s filing of his habeas petition and 5 grievances were protected conduct, id. at 22, and “defendants[’] adverse actions [are] the 6 type of action which can chill a person of ordinary firmness from exercising his First 7 Amendment rights,” id., and “can[]not be found to [have] had reasonably advanced a 8 legitimate penological goal.” Id. 9 To establish his First Amendment retaliation claim, Plaintiff must establish that 10 Defendants acted with a retaliatory motive, meaning he must introduce evidence of a causal 11 connection between Defendants’ adverse actions and Plaintiff’s protected conduct. See 12 Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). On de novo review, the Court 13 agrees with Magistrate Judge Montenegro that Plaintiff has failed to adduce evidence that 14 any of Defendants Velardi, Newton, Denbela, Walker, Seeley, Glynn, or Canlas acted with 15 the requisite retaliatory motive. See R&R at 18–31. 16 Here, Plaintiff offers no evidence that Defendants Velardi and Newton acted with 17 retaliatory motive aside from the temporal proximity of Defendant Velardi’s ordering of 18 the Gabapentin blood test and Defendant Newton’s cancellation of Plaintiff’s Gabapentin 19 prescription on May 10, 2012, to the filing of Plaintiff’s habeas petition on May 7, 2012. 20 See ECF No. 170 at 30, 40. But, as Magistrate Judge Montenegro correctly concludes, see 21 R&R at 21, 24, this evidence—without more—is insufficient to survive summary 22 judgment. See Pratt, 65 F.3d at 808. 23 As for Defendants Denbela, Walker, Seeley, and Glynn, Plaintiff offers no evidence 24 that they acted with retaliatory motive aside from their denials of Plaintiff’s medical 25 appeals. See ECF No. 170 at 23, 51–54, 56. Again, as Magistrate Judge Montenegro 26 correctly concludes, see R&R at 25, 27, 28, 29, this evidence—without more—is 27 insufficient to survive summary judgment. See Dicey v. Hanks, 2015 WL 4879627, at *5. 28 / / / 1 Finally, as to Defendant Canlas, whose request for summary judgment Plaintiff does 2 not oppose, there is no evidence that Defendant Canlas treated Plaintiff after the filing of 3 Plaintiff’s habeas petition in 2012. See ECF No. 168-4 ¶¶ 5–7. Consequently, as 4 Magistrate Judge Montenegro correctly finds, see R&R at 31, “[i]t is impossible for Canlas 5 to have been retaliating against Plaintiff in 2010 and 2011 for the exercise of [Plaintiff’s] 6 First Amendment rights in 2012.” 7 For all these reasons, the Court OVERRULES Plaintiff’s objection to Magistrate 8 Judge Montenegro’s recommendation that the Court grant summary judgment in 9 Defendants’ favor as to his second cause of action for First Amendment retaliation. 10 B. Fourth Cause of Action: Conspiracy 11 Plaintiff objects “that defendants[’] actions and those reasonable inference made 12 when viewed in a light most favorable to the non-moving party [is] admissible evidence 13 under the substantive law governing dispute of material fact from which it can be infer[red] 14 the exist[e]nce of an agreement and/or meeting of the minds between moving defendants 15 to violate Garcia’s constitutional rights’ from which a constitutional violation resulted.” 16 Objs. at 23. Specifically, “Garcia has shown facts demonstrating that defendants[’] actions 17 were ‘unlikely to have been undertaken without an agreement,’” id., and “has set forth facts 18 sufficient to infer that defendant[s’] actions were the result of an understanding to 19 accomplish the conspiracy objective,” i.e., “to cancel Garcia’s medically necessary pain 20 management treatment medications and deny any of his requests for said treatment via 21 pretext and without cause.” Id. at 23–24. 22 To sustain a claim of conspiracy under Section 1983, Plaintiff must show “an 23 agreement or ‘meeting of the minds’ to violate constitutional rights.” Franklin v. Fox, 312 24 F.3d 423, 441 (9th Cir. 2002) (citing United Steelworkers of Am. v. Phelps Dodge Corp., 25 865 F.2d 1539, 1540–41 (9th Cir. 1989) (en banc)). On de novo review, the Court agrees 26 with Magistrate Judge Montenegro that Plaintiff has failed to adduce evidence that any of 27 Defendants Velardi, Newton, Denbela, Walker, Seeley, Glynn, or Canlas committed an 28 / / / 1 underlying constitutional violation, see R&R at 32 n.5; see also supra Section VILA, or 2 entered into an agreement to violate Plaintiff’s constitutional rights. See R&R at 32-34. 3 Here, all Defendants have declared that they did not act in concert with one another 4 |/and that their decisions were based on their examinations of Plaintiff and his medical 5 ||records and accepted medical practices. See ECF No. 160-3 § 16; ECF No. 168-4 § 11; 6 || ECF No. 168-5 95; ECF No. 168-6 4 30; ECF No. 168-7 §] 9; ECF No. 168-8 4 30; ECF 7 168-9 9 12. On the other hand, Plaintiff produces no evidence—aside from his own 8 speculation and conclusory allegations—to support the existence of any conspiracy. As 9 || Magistrate Judge Montenegro correctly concludes, see R&R at 33-34, this is insufficient 10 || for Plaintiff's conspiracy claim to survive summary judgment. See Burns v. Cnty. of King, 11 |/883 F.2d 819, 821 (th Cir. 1989) (concluding that summary judgment was properly 12 || granted on § 1983 conspiracy claim where the plaintiff's “claims against all the defendants 13 |}. . . were supported only by conclusory allegations”). Accordingly, the Court 14 || OVERRULES Plaintiff's objection to Magistrate Judge Montenegro’s recommendation 15 || that the Court grant summary judgment in Defendants’ favor as to his fourth cause of action 16 || for conspiracy. 17 CONCLUSION 18 In light of the foregoing, the Court OVERRULES Plaintiff's Objections (ECF No. 19 176), ADOPTS in its entirety Magistrate Judge Ruth Bermudez Montenegro’s Report and 20 ||Recommendation (ECF No. 173), and GRANTS Defendants’ Motions for Summary 21 || Judgment (ECF Nos. 160, 168). Because this Order concludes the litigation in this matter, 22 ||the Clerk of Court SHALL CLOSE the file. 23 IT IS SO ORDERED. 24 25 ||Dated: August 19, 2019 tt f Le 26 on. Janis L. Sammartino 97 United States District Judge 28