(PC) Gelazela v. United States

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK GELAZELA, ) Case No.: 1:21-cv-01499 JLT EPG ) 12 Plaintiff, ) ORDER ADOPTING IN FULL THE FINDINGS ) AND RECOMMENDATIONS, DENYING 13 v. ) PLAINTIFF’S MOTION FOR SUMMARY ) JUDGMENT, GRANTING THE GOVERNMENT’S 14 UNITED STATES OF AMERICA, et. al., ) MOTION FOR SUMMARY JUDGMENT, ) GRANTING DEFENDANT MOORE’S MOTION 15 Defendants. ) FOR SUMMARY JUDGMENT, AND DIRECTING ) THE CLERK OF COURT TO CLOSE THIS CASE 16 ) ) (Docs. 45, 48, 48, and 63) 17 ) 18 Mark Gelazela seeks to hold the defendants liable for violations of his rights while he was in 19 custody at Mendota FCI. Plaintiff alleges that he was remanded into custody six weeks after a knee 20 surgery, when he was “fresh off crutches and wearing a full metal leg-brace to lock his knee in place.” 21 (Doc. 13 at 5.) The action is proceeding on the following claims: (1) against Thomas Moore, M.D., 22 for deliberate indifference to his serious medical needs in violation of the Eighth Amendment and (2) 23 against the Government under the Federal Tort Claims Act based upon the treatment Plaintiff received 24 (or failed to receive) for his knee. (Docs. 13, 24.) Plaintiff moved for summary judgment pursuant to 25 Rule 56 of the Federal Rules of Civil Procedure. (Doc. 45.) Moore and the Government filed cross- 26 motions for summary judgment. (Docs. 48, 58.) For the reasons set forth below, the Court adopts the 27 Findings and Recommendations and directs entry of judgment in favor of Defendants. 28 /// 1 I. Findings and Recommendations 2 As an initial matter, the magistrate judge noted Plaintiff filed surreplies to both motions for 3 summary judgment. (Doc. 63 at 7, citing Docs. 55, 62.) The magistrate judge observed that Plaintiff 4 did not obtain leave of court for the filings, and “[n]either the Local Rules nor the Federal Rules 5 provide the right to file a surreply.” (Id.) The magistrate judge found a valid reason did not exist to 6 support the filing, such as addressing new arguments raised by Defendants in their replies. (See id., 7 citing Hill v. England, 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005).) Therefore, the magistrate 8 judge declined to consider Plaintiff’s surreplies. (Id. at 9.) 9 A. Claim under the Federal Tort Claims Act 10 The Government argued in its motion that Plaintiff’s claim under the Federal Tort Claims Act 11 was untimely. (See Doc. 48-2 at 1.) The magistrate judge observed the parties did “not dispute that 12 under 28 U.S.C. § 2401(b), an action needed to be filed within six months of the agency mailing the 13 denial to Plaintiff via certified mail.” (Doc. 63 at 9.) The magistrate judge observed it was undisputed 14 that the “BOP mailed Plaintiff via certified mail a notice that his claim was denied on March 8, 2021.” 15 (Id., citing Doc. 48-4 at 112, 114.) Thus, the magistrate judge found “Plaintiff had to commence this 16 suit by no later than September 8, 2021.” (Id.) Because Plaintiff filed his complaint on October 8, 2021, 17 the magistrate judge found “absent tolling, the FTCA’s six- month statute of limitations bars this 18 action.” (Id. at 9-10.) 19 1. Tolling under 28 U.S.C. § 2401(a) 20 Plaintiff asserts his complaint was timely under Section 2401(a), because he was “legally 21 disabled all throughout his incarceration and still is….” (Doc. 50 at 4.) The magistrate judge observed 22 the Ninth Circuit determined “the tolling provision of [Section] 2401(a) applies to non-tort—meaning, 23 non-FTCA—claims.” (Doc. 10-11, citing Booth v. United States, 914 F.3d 1199, 1206 (9th Cir. 2019).) 24 Further, the magistrate judge found that even if Section 2401(a) applied to FTCA claims, there was “no 25 evidence that Plaintiff suffers from a legal disability sufficient to toll the statute of limitations period.” 26 (Id. at 12, citing United States v. Ioane, 2019 WL 1332188, at *3 (E.D. Cal. Mar. 25, 2019).) Thus, the 27 magistrate judge “reject[ed] Plaintiff’s arguments that 28 U.S.C. § 2401(a) tolling provision applies to 28 his FTCA claim and applies to Plaintiff because he is physically disabled.” (Id.) 1 2. Equitable tolling 2 Plaintiff argued that he is entitled to tolling on the following grounds: (1) “the small disparity 3 in the timeliness difference,” because the Government argued his complaint was due September 8, 4 2021 and he filed it 30 days later; (2) his disability; (3) being in a “‘three week’ and other full Covid 5 lockdowns;” (4) denial of access to the law library while incarcerated; (5) his status as a pro se 6 litigant; and (6) “delays incurred by issues outside of [his] control,” such as requiring permission to go 7 to the post office once released to home confinement, as well as obtaining transportation. (Doc. 50 at 8 6; see also id. 3-5.) The magistrate judge rejected these assertions and found “Plaintiff failed to make 9 a showing that would entitle him to equitable tolling.” (Doc. 63 at 13; see also id. at 12-14.) 10 3. Conclusion 11 The magistrate judge determined that “Plaintiff filed this lawsuit after the FTCA’s six- month 12 statute of limitations period, and … [he] is not entitled to equitable tolling.” (Doc. 63 at 14.) The 13 magistrate judge concluded the FCTA claim is barred and recommended the Government’s motion for 14 summary judgment be granted. (Id. at 14-15.) 15 B. Claim for violation of the Eighth Amendment 16 Plaintiff asserts Moore violated his Eighth Amendment rights through deliberate indifference to 17 his serious medical needs. Moore argued the Court should grant summary judgment on the grounds 18 that a damages remedy was not available under Bivens v. Six Unknown Federal Narcotics Agents, 403 19 U.S. 388 (1971). (See Doc. 58-2 at 12-21.) The magistrate judge observed there is a two-part test for 20 determining whether a remedy is available under Bevins: “First, courts must determine whether the 21 plaintiff is seeking a Bivens remedy in a new context. If the answer to this question is ‘no,’ then no 22 further analysis is required. If the answer is ‘yes,’ then the court must determine whether ‘special 23 factors counsel [] hesitation.’” (Doc. 63 at 16, quoting Lanuza v. Love, 899 F.3d 1019, 1021 (9th Cir. 24 2018).) Applying this test, the magistrate judge found at the first step that “Plaintiff’s Eighth 25 Amendment claim arises within an existing context.” (Id. at 18; see id. 16-18.) Therefore, the 26 magistrate judge found damages are available under Bivens. (Id.) 27 Turning to the merits of Plaintiff’s Eighth Amendment claim, the magistrate judge noted “the 28 parties do not dispute that Plaintiff had a serious medical need.” (Doc. 63 at 21.) The magistrate 1 judge observed Plaintiff asserted Moore exhibited deliberate indifference in the following manners: 2 1) Moore refused to issue the necessary form for the Plaintiff to receive an additional knee brace; 3 2) Dr. Moore refused to send the Plaintiff out for an MRI despite the 4 Plaintiff’s repeated requests; 5 3) When Plaintiff was finally sent for an MRI, the setback caused by Dr. Moore directing the MRI to be done on the wrong knee on the 6 authorization request “delayed the Plaintiff’s exam just long enough to push his window for surgery outside of the end of his incarceration,” 7 4) Dr. Moore denied him even anti-inflammatories; 8 5) Dr. Moore refused to put Plaintiff on limited duty status; 9 6) Over the course of year and a half, Moore refused to provide Plaintiff 10 with any care for Plaintiff’s knee[.] 11 (Doc. 63 at 21, citing Doc. 45-2 at 2-13, 20; Doc. 13 at 13-14.) The magistrate judge addressed each of 12 these assertions, and found the evidence did not support a conclusion that Moore was deliberately 13 indifferent. (Id. at 22-30.) 14 First, although Plaintiff asserted that he was to get a new knee brace “per his surgical doctor’s 15 orders,” the medical evidence Plaintiff submitted did not show a surgeon ordered Plaintiff to replace 16 his initial knee brace with a different brace after three months. (Doc. 63 at 23-24.) Instead, the 17 magistrate judge found the identified letter indicated only that “no brace is needed at all after about six 18 months,” and the evidence Plaintiff identified showed he asked “Moore to approve a knee brace ‘sent 19 in from family’ during his July 2, 2020 visit[], or nearly eight months after the surgery.” (Id.) The 20 magistrate judge observed this was “long past the period of time that Plaintiff was supposed to stop 21 wearing the knee brace altogether.” (Id.) The magistrate judge found “at most, Plaintiff’s evidence 22 shows a difference of opinion concerning a course of medical treatment,” which was “insufficient, as a 23 matter of law, to establish deliberate indifference.” (Id., quoting Jackson v. McIntosh, 90 F.3d 330, 24 332 (9th Cir. 1996).) 25 The magistrate judge also found Plaintiff did not establish deliberate indifference based upon 26 the refusal to send Plaintiff out for an MRI. (Doc. 63 at 24-26.) The evidence showed Moore did not 27 send Plaintiff for an MRI during the medical visits on April 2, 2020 and July 2, 2020, but referred 28 Plaintiff for one on February 10, 2021. (Id. at 24-26.) The magistrate judge observed the evidence 1 established that Moore informed Plaintiff: “due to the coronavirus pandemic, ‘inmates were not being 2 transported into the community for routine or non-emergent health issues.” (Id. at 24-25, quoting Doc. 3 49-2 at 5, 38.) In addition, the magistrate judge found Plaintiff’s own evidence contradicted his claim 4 that “[a]t no time ever” did Moore inform him that treatment could not be obtained due to the 5 pandemic in April 2020. (Id. at 25.) The magistrate judge observed: “On July 13, 2020 in BP-8 to the 6 Warden, Plaintiff wrote ‘Dr. Moore finally responded to one of my sick call requests (around April 7 2nd) to inform me of this appointment (scheduled for April 4th) but, in the same breath, he also 8 informed me that I could not go to the appointment due to the Chinese virus lockdown.’” (Id., quoting 9 Doc. 45-5 at 10) [modification adopted].) Similarly, the magistrate judge noted that in September 10 2020, “Plaintiff sent a message to Health Services, ‘inquiring about [his] ortho appt that was scheduled 11 on April 4th but then postponed due to covid… Is there any discernable time in the future when I can 12 see an orthologist?’” (Id., quoting Doc. 45-14 at 16.) The magistrate judge found the identified delay 13 in an MRI referral—because of the pandemic—was neither arbitrary nor for a “non-medical reason” 14 and “Plaintiff fails to raise a material issue of fact on this issue.” (Id. at 26.) 15 Plaintiff also noted that Moore initially referred him for an MRI on the wrong knee, which 16 caused a delay in treatment. (Doc. 45-2 at 13.) Moore acknowledged the error, but asserted there was 17 no evidence the delay caused any injury to Plaintiff. (Doc. 49 at 12.) Plaintiff asserts this delay was 18 “just long enough to push his window for surgery outside of the end of his incarceration, all of which 19 further damaged his knee and extended his suffering.” (Doc. 45-2 at 13.) Plaintiff reports that in June 20 2021, an orthopedic surgeon offered a knee arthroscopy but informed Plaintiff the surgery “would not 21 happen for 3 months,” by which time Plaintiff would be released. (Id. at 14.) The magistrate judge 22 found no evidence that Moore “knew that Plaintiff would be released to home confinement soon, knew 23 that home confinement would delay the surgery, and deliberately ordered the scan on the wrong knee to 24 delay the surgery.” (Doc. 63 at 27.) The magistrate judge found, “At most, ordering an MRI on the 25 wrong knee amounts to negligence or medical malpractice, which will not support deliberate 26 indifference claim.” (Id., citing Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980).) 27 Next, the magistrate judge noted that Plaintiff alleged in his amended complaint that Moore 28 “refused to issue even something as simple as ibuprofen.” (Doc. 63 at 27, quoting Doc. 13 at 5.) The 1 magistrate judge noted that in seeking summary judgment, Plaintiff indicated the refusal was “de facto, 2 a denial of medicine” because Moore referred Plaintiff to purchase ibuprofen and other-over-the- 3 counter medications from the commissary, but Plaintiff could not afford it. (Doc. 45-2 at 9-10.) The 4 magistrate judge found Plaintiff did not present evidence that Moore knew Plaintiff lacked funds to 5 purchase the medication from the commissary, and as a result Plaintiff did not show deliberate 6 indifference. (Doc. 63 at 28, citing Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 408 7 (9th Cir. 1985), Emil v. Crawford, 125 F. App’x 112, 112-13 (9th Cir. 2005).) Likewise, the magistrate 8 judge also found the undisputed evidence contradicted Plaintiff’s allegation that he received “no care” 9 for his knee, because “the record shows that Plaintiff was seen multiple times by numerous medical 10 staff,” and had Plaintiff was both seen by a specialist and had imagining done “[a]s soon as the BOP 11 started sending out inmates again following the COVID outbreak.” (Id. at 29.) 12 Finally, the magistrate judge found Plaintiff’s contentions regarding limited duty status and 13 other accommodations, such as a lower bunk, failed to establish deliberate indifference by the 14 physician. (Doc. 63 at 28-29.) Therefore, the magistrate judge recommended the Court grant summary 15 judgment to Moore and deny Plaintiff’s cross-motion. (Id. at 30.) 16 II. Objections 17 Plaintiff filed objections to the Findings and Recommendations on August 24, 2024 (Doc. 64), 18 which he amended on September 3, 2024 (Doc. 65). Plaintiff objects to the magistrate judge declining 19 to consider his surreplies, arguing that “[g]iven that the plaintiff is pro se, he was obviously not fully 20 aware he had to ask permission to submit a ‘surreply’ and submitted his surreplies because he had 21 waved (sic) court appearances for all three MSJ’s given his disability … and because of his present 22 distant locale geographically to the base court given his difficulties traveling.” (Doc. 65 at 3.) He 23 maintains “both surreplies should be allowed,” because the defendants raised new arguments in their 24 opposition that they “knew that the Plaintiff would not have an opportunity to refute … sans a court 25 appearance.” (Id. at 4.) 26 He also objects to the findings regarding the timeliness of his complaint, arguing first that his 27 complaint was actually timely based upon (1) the agency’s lack of response to his mailed reply and (2) 28 a letter from the warden. (Doc. 65 at 1-2.) Nevertheless, Plaintiff maintains that tolling should apply 1 because he “was an inmate in COVID lockdown and quarantine for several months.” (Id. at 2-3; see 2 also id. at 7.) He asserts that in considering whether tolling applied under 28 U.S.C. § 2401(a), the 3 magistrate judge “wrongly stat[ed] that the Plaintiff’s disability was physical only” because he has 4 “documented and verifiable PTSD in his VA medical records and could have bought this evidence to 5 bear (and would at trial) ….” (Id. at 5.) Plaintiff maintains his medical issues support equitable 6 tolling. (Id. at 9.) 7 Plaintiff also argues the magistrate judge erred in addressing the merits of his Eighth 8 Amendment claim. (Doc. 65 at 9-21.) For example, Plaintiff asserts the denial of a knee brace from a 9 family member—which he states Moore denied “because it had a small amount of metal in it”—shows 10 Moore was deliberately indifferent to his medical need. (Id. at 9-10.) He also contends he was 11 “verbally” told by the surgeon to use the second brace that he wanted family members to send, “and the 12 surgeon would testify to this at trial.” (Id. at 12.) Further, Plaintiff argues the denial of anti- 13 inflammatories as “an unauthorized use of government funds” was “preposterous” and “any []fair- 14 minded jury could reasonably find for the non-moving party.” (Id. at 10, citation omitted.) He asserts 15 the “COVID excuses fail,” because his impairment was an “clearly emergent.” (Id. at 13-15; see also 16 id. at 19-20.) In addition, Plaintiff argues that Moore’s error in ordering the MRI for the wrong knee 17 resulted in damages given the delay. (Id. at 16-17.) Plaintiff questions the magistrate judge’s review of 18 the evidence and asserts the Court should reject many of the evidentiary findings. (See generally id. at 19 16-20.) Plaintiff concludes Moore exhibited deliberate indifference through the treatment provided—or 20 lack of treatment—and caused him damages. (Id. at 21-24.) 21 III. Discussion and Analysis 22 A district judge may “accept, reject or modify, in whole or in part, the findings and 23 recommendations...” 28 U.S.C. § 636(b)(1). If a party files objections, “the court shall make a de novo 24 determination of those portions of the report or specified proposed finding or recommendations to 25 which objection is made.” Id. A de novo review requires the Court to “consider[] the matter anew, as 26 if no decision had been rendered.” Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). Because 27 Plaintiff objected to each of the findings of the magistrate judge, the Court reviewed the entirety of the 28 matter. However, the analysis below is focused only upon the argument and evidence necessary to 1 determine whether there is a genuine dispute as to any material fact, as required under Rule 56 of the 2 Federal Rules of Civil Procedure. Towards that end, the Court disregards arguments and objections 3 that are irrelevant to the analysis. 4 A. Filing of Surreplies 5 “Neither the Local Rules nor the Federal Rules provide the right to file a surreply.” Kamali v. 6 Stevens, 2022 WL 2119024, *1 (E.D. Cal. June 11, 2022). Nevertheless, “district courts have the 7 discretion to either permit or preclude a surreply.” Garcia v. Biter, 195 F. Supp. 3d 1131, 1134 (E.D. 8 Cal. 2016) (citing U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 1195, 1203 (9th Cir. 2009)). 9 Leave to file a surreply is appropriate where new arguments or evidence is raised in a reply. See 10 Garcia, 195 F. Supp. 3d at 1134 (indicating a surreply may be permitted where mew issues, arguments, 11 or evidence are raised in a reply brief); Kamali, 2022 WL 2119024, at *1 (“new arguments in [a] reply 12 brief” constitute “a valid reason” for the filing of a surreply [citation omitted]). 13 As an initial matter, Plaintiff’s status as a pro se litigant does not grant him leave to file any 14 pleadings he wishes. The Court informed Plaintiff that he must familiarize himself with the Local 15 Rules and Federal Rules of Civil Procedure at the inception of this case and neither include provisions 16 for surreplies. See Kamali, 2022 WL 2119024, at *1. On the other hand, the Local Rules explicitly 17 state: “After a reply is filed, no additional memoranda, papers, or other materials may be filed without 18 prior Court approval…” Local Rule 230(m). 19 Plaintiff’s contention that he waived a hearing and thus should be permitted to file the surreplies 20 is contradicted by the record. This matter was classified by the Court as a “Prisoner Civil Rights” case, 21 to which certain procedures are applied. For example, under this classification, motions are “submitted 22 upon the record without oral argument unless otherwise ordered by the Court.” Local Rule 230(l). The 23 Court informed Plaintiff of this procedure in its “First Informational Order in Prisoner/Civil Detainee 24 Civil Rights Case,” and indicated “[a]ll pre-trial motions will be submitted for decision based solely 25 upon the written papers and without a hearing.” (Doc. 5 at 5, citing Local Rule 230(l).) Thus, 26 Plaintiff’s assertion that he “waived” oral arguments is unavailing. 27 Finally, Plaintiff fails to show the surreplies were necessary to address “new arguments” made 28 by the defendants. Although Plaintiff suggests the Government made new arguments regarding his 1 disabilities and the propriety of tolling in its reply brief, a review of the record demonstrates Plaintiff 2 raised the issue of his disability and tolling under 28 U.S.C. § 2401(a) in his opposition. The 3 Government was merely responded to the argument made. (See Doc. 50 at 4 [Plaintiff’s opposition, 4 asserting that under Section 2401(a), “[t]he action of any person under legal disability or beyond the 5 seas at the time the claim accrues may be commenced within three years after the disability ceases” 6 [emphasis omitted]; Doc. 52 at 2-3 [the Government’s reply, arguing the provision is inapplicable].) 7 Because Plaintiff did not identify “new arguments” or legal issues raised in the reply brief by his 8 opponent, he fails to demonstrate a valid reason for filing a surreply. See Garcia, 195 F. Supp. 3d at 9 1134. The magistrate judge did not err in declining to consider Plaintiff’s surreplies. 10 B. Claim under the FCTA 11 The FTCA imposes statutes of limitations for civil actions and tort claims against the United 12 States. 28 U.S.C. §§ 2401(a), (b). The Ninth Circuit determined the provisions of Section 2401(a) 13 applies to “non-tort claims brought against the United States.” Booth v. United States, 914 F.3d, 1206 14 (9th Cir. 2019). On the other hand, the provisions of Section 2401(b) govern tort claims against the 15 Government. Id.; see also 28 U.S.C. §§ 2401(b). 16 1. Timeliness 17 Pursuant to the FTCA, “A tort claim against the United States shall be forever barred unless it 18 is [1] presented in writing to the appropriate Federal agency within two years after such claim accrues 19 or [2] unless action is begun within six months after the date of mailing, by certified or registered mail, 20 of notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b). 21 Plaintiff presented his “Claim for Damage, Injury, or Death” to the Bureau of Prisons. (Doc. 48-4 at 22 4-108.) The Western Regional Office Counsel responded by informing Plaintiff that the claim was 23 received on January 11, 2021, and identified as Administrative Claim No. TRT-WRX-2001-02085. 24 (Id. at 110.) The BOP Western Regional Office Counsel notified Plaintiff, by certified mail, that 25 Claim No. TRT-WRX-2001-02085 was denied on March 8, 2021. (Id. at 112, 114.) This notice 26 informed Plaintiff that he was “afforded six months from the date of the mailing of this letter via 27 certified mail within which to bring suit in the appropriate United States District Court.” (Id. at 112.) 28 The express language constitutes a notice of final denial under Section 2401(b). 1 Plaintiff argues the six-month period under Section 2401(b) began to run either (1) when he 2 responded to the denial by certified mail on July 14, 2021, or (2) he received a letter from the warden 3 on June 8, 2021. (Doc. 65 at 1-2.) However, Plaintiff’s contentions fail. Section 2401(b) does not 4 contemplate responses to a denial letter or extend the time for such. Doing so could result in a situation 5 in which a claimant may extend the filing deadline in perpetuity by mailing responses at any time to the 6 agency. Furthermore, the identified letter from the warden does not address Administrative Claim No. 7 TRT-WRX-2001-02085. (See Doc. 45-9 at 4.) Rather, the warden addressed Plaintiff’s “Request for 8 Administrative Remedy”—which Plaintiff presented to the institution, seeking compassionate release 9 on May 25, 2021—identified by the warden as Administrative Remedy No. 1082245-F1. (Id. at 4; see 10 also Doc. 45-12 at 3-4.) Importantly, a “Request for Administrative Remedy” presented to an 11 institution is not a tort claim presented to an agency under the FTCA. See 28 U.S.C. § 2671; see also 12 Morgan v United States, 2025 WL 561575, at *3 (11th Cir. Feb. 20, 2025) (the plaintiff’s “request for 13 an administrative remedy that he filed under the Administrative Remedy Program was not a tort 14 claim”). Indeed, Plaintiff’s own exhibits acknowledge that a Request for Administrative Remedy, 15 Form BP-9 . . . is appropriate for filing at the institution.” (See Doc. 45-9 at 5 [emphasis added].) The 16 warden’s denial of Plaintiff’s request for compassionate release is irrelevant to the tort claim made to 17 the BOP. 18 Because the BOP notified Plaintiff of the final denial of Administrative Claim No. TRT-WRX- 19 2001-02085 by certified mail on March 8, 2021, Plaintiff was required to file any action in the district 20 court within six months, or no later than September 8, 2021. Plaintiff filed this action a month later, on 21 October 8, 2021. (Doc. 1.) Therefore, unless Plaintiff carries the burden to show tolling is 22 appropriate, his claim is “forever barred.” 28 U.S.C. § 2401(b). 23 2. Tolling 24 Plaintiff contends the tolling provision of Section 2401(a) applies because he is disabled. 25 However, as discussed above, Section 2041(a) does not apply to tort actions. Compare 28 U.S.C. §§ 26 2401(a) with 28 U.S.C. § 2401(b). As a result, the Ninth Circuit explicitly rejected the same argument 27 Plaintiff now makes. See Booth, 941 F.3d at 1206 (“We therefore reject Booth’s argument that the 28 tolling provision in subsection (a) should apply to claims covered by subsection (b).”) Consequently, 1 the Court declines to address the arguments related to the extent of Plaintiff’s physical and mental 2 disabilities, as the tolling provision does not apply. 3 Plaintiff also asserts he is entitled to equitable tolling, particularly asserting that his medical 4 issues prevented him from filing, and he “was an inmate in COVID lockdown and quarantine for 5 several months without so much a pen and paper to even compose a timely complaint with.” (Doc. 65 6 at 2-3 [emphasis omitted]; see also id. at 7, 9.) Plaintiff’s alleged inability to file documents due to 7 medical issues and lockdown is plainly contradicted by his litigation history and his ability to prepare 8 other documents, which the Court is permitted to consider. See Ramirez v. Yates, 571 F.3d 993, 998 9 (9th Cir. 2009) (considering the petitioner’s ability to prepare other filings during the relevant period to 10 determine whether equitable tolling should be applied). During the six-month period while the FTCA 11 statute of limitations was running—between March 8, 2021, and September 8, 2021—Plaintiff prepared 12 and/or submitted the following1: 13 • May 7, 2021 – “Notice to the Court that its Order Was Ignored by Mendota FCI” (Gelazela v. White, Case No. 1:21-cv-0002-DAD-HBK (E.D. Cal.) [Doc. 11]) 14 • May 7, 2021 – “Inmate Request to Staff for Release under the CARES Act” (Doc. 45- 15 12 at 1 [Pl’s MSJ, Exh. U], indicating the request included “100 pages”) 16 • May 18, 2021 – “Request for Administrative Remedy” to the Warden for release under the CARES Act. (Doc. 45-12 at 3 [Pl’s MSJ, Exh. U], indicating the submission 17 included a “102 page package”) 18 • June 8, 2021 – “Regional Administrative Remedy Appeal” for release under the CARES Act (Doc. 45-12 at 5 [Pl’s MSJ, Exh. U], and indicating the submission 19 included a “103 page package” to support the request for compassionate release) 20 • June 9, 2021 – “Objections to Findings and Recommendations” (Gelazela v. White, Case No. 1:21-cv-0002 [Doc. 14]) 21 • June 10, 2021 – “Motion/Petitioner for Release to Home Confinement” (Gelazela v. 22 United States, Case No. 8:20-cv-01799-DO (C.D. Cal) [Doc. 12, 118 pages]) 23 • June 12, 2021 – Addendum to BP-9 (Doc. 45-14 at 44-45 [Pl’s MSJ, Exh. W]) 24 25 1 A court may take judicial notice of “a fact that is not subject to reasonable dispute” because it is generally known or “can be accurately and readily determined” from indisputably reliable sources. Fed. R. Evid. 201. Thus, “courts may 26 take judicial notice of documents filed in other court proceedings” or on its own docket. NuCal Foods, Inc. v. Quality Egg LLC, 887 F. Supp. 2d 977, 984-85 (E.D. Cal. 2012). The Court takes judicial notice of the dockets and relevant 27 filings in Gelazela v. White, Case No. 1:21-cv-0002-DAD-HBK (E.D. Cal.); Gelazela v. United States, Case No. 8:20-cv-01799-DO (C.D. Cal); and Gelazela v. Santa Ana Police Dep’t, Case No. 8:21-cv-01126-HDV-DFM (C.D. 28 Cal.). To the extent the Court cites Plaintiff’s representations made in the documents, judicial notice is not taken of 1 • June 24, 2021 – “Civil rights complaint” initiating a new lawsuit (Gelazela v. Santa Ana Police Dep’t, Case No. 8:21-cv-01126-HDV-DFM (C.D. Cal.) [Doc. 1]) and 2 “Application to Proceed In Forma Pauperis by a Prisoner” [Doc. 2])_ 3 • July 9, 2021 –“Central Office Administrative Remedy Appeal” (Doc. 45-12 [Pl’s MSJ Exh. U], indicating the appeal included a “104 page package”) 4 • July 26, 2021 – “Claim for Damages” submitted to City of Mendota (Doc. 45-14 at 1- 5 54 [Pl’s MSJ Exh. W]) 6 • July 29, 2021 – “Motion for Continuance,” requesting an extension of time to file an amended complaint (Gelazela v. Santa Ana Police Dep’t, Case No. 8:21-cv-01126 7 [Doc. 5]) 8 • July 30, 2021 – “Rebuttal to Government’s opposition Release” (Gelazela v. United States, Case No. 8:20-cv-01799 [Doc. 15, 15 pages]) 9 • August 12, 2021 – “First Amended Complaint” in Gelazela v. Santa Ana Police Dep’t, 10 Case No. 8:21-cv-01126 [Doc. 9]) 11 Plaintiff offers no explanation for how the various circumstances he identifies—such as his pro se 12 status, COVID lockdowns, lack of law library access, and medical issues—made it impossible for him 13 to file a timely FTCA claim in this Court but did not impair his ability to prepare these other substantial 14 legal documents. Indeed, Plaintiff not only initiated a different civil action with Gelazela v. Santa Ana 15 Police Dep’t., Case No. 8:21-cv-01126-HDV-DFM (C.D. Cal.), but also prepared an amended 16 complaint during the relevant period. Moreover, as Plaintiff told Central District at the time he prepared 17 the amended complaint without access to the library: “we have been on full lock-down without access 18 to the legal law library, printer or copier for the last ten days, so I hastily had to prepare the enclosed 19 amended complaint and am putting it in the mailbox today … .” (Case No. 8:21-cv-01126-HDV-DFM, 20 Doc. 7 at 1.) Thus, it appears the various lockdowns and the lack of library access did not thwart 21 Plaintiff from filing a complaint—or even an amended complaint—as he now suggests. 22 On these facts, the Court is unable to find that Plaintiff diligently pursued the issues presented 23 in his tort claim or that an “extraordinary circumstance stood in his way and prevented timely filing,” 24 as required for equitable tolling. See Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (internal 25 quotations omitted); see also Ramirez, 571 F.3d 998. 26 C. Merits of the Eighth Amendment claim 27 To establish a claim under the Eighth Amendment for inadequate medical care, a prisoner must 28 show the mistreatment rises to the level of “deliberate indifference to serious medical needs” to 1 constitute cruel and unusual punishment. Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 2 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for Eighth Amendment inadequate 3 medical care requires the plaintiff to show (1) “a serious medical need by demonstrating that failure to 4 treat a prisoner’s condition could result in further significant injury or the unnecessary and wonton 5 infliction of pain” and (2) “the defendant’s response to the need was deliberately indifferent.” Id. 6 (internal quotations omitted). As the magistrate judge determined, it is undisputed that Plaintiff had “a 7 serious medical need.” Thus, the Court must only determine whether Plaintiff carries the burden to 8 establish deliberate indifference, and whether there is a material dispute of fact concerning this factor. 9 See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 10 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th 11 Cir. 2004). Deliberate indifference is established only when the defendant “knows of and disregards 12 an excessive risk to inmate health or safety; the [defendant] must both be aware of the facts from 13 which the inference could be drawn that a substantial risk of serious harm exists, and he must also 14 draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “If a [defendant] should have 15 been aware of the risk, but was not, then the [defendant] has not violated the Eighth Amendment, no 16 matter how severe the risk.” Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 17 2002) (citation omitted). This “subjective approach” focuses only “on what a defendant’s mental 18 attitude actually was.” Farmer, 511 U.S. at 839. 19 A difference of opinion about the necessity or extent of medical treatment does not amount to a 20 constitutional violation. Toguchi, 391 F.3d at 1060. Although Plaintiff clearly disagrees with Moore’s 21 decision to decline another knee brace—more than eight months after surgery—this disagreement does 22 not establish deliberate indifference. See Franklin v. State of Oregon, State Welfare Division, 662 23 F.2d 1337, 1344 (9th Cir. 1981). Furthermore, as the magistrate judge observed, the medical evidence 24 Plaintiff submitted did not show he was directed to replace the first knee brace after three months. To 25 the extent Plaintiff maintains the unidentified surgeon orally instructed him to change the brace, the 26 magistrate judge did not err in disregarding this hearsay. See, e.g., Gress v. Smith, 2018 WL 6421254, 27 at *29 (E.D. Cal. Dec. 5, 2018) (finding on summary judgment, a “plaintiff’s hearsay statement that a 28 physician … ordered a CT scan cannot be credited” without supporting evidence, such as “a 1 declaration from the physician or a copy of such order or medical record”); Meza v. Solana County 2 Custody Division/Medical, 2011 WL 66332, at *2 (E.D. Cal. Jan. 7, 2011) (where the plaintiff 3 presented a “hearsay recounting of a conversation with [his physician],” the Court found an “absence 4 of proof” for his Eighth Amendment claim on summary judgment). 5 In addition, Plaintiff does not show deliberate indifference through the delays in treatment, 6 including from the initial MRI order on the wrong knee. Although Moore erred by ordering the MRI 7 on the wrong knee, Plaintiff shows no evidence the error involved the requisite culpability. See, e.g., 8 Fernandez-Morales v. Gutierrez, 2023 WL 3918732, at *2-3 (D. Nev. June 8, 2023) (granting 9 summary judgment in favor of the defendant physician where the plaintiff asserted the physician 10 ordered the wrong tests and provided the wrong treatment, because there was no evidence of deliberate 11 indifference). As the magistrate judge explained, “medical malpractice” or negligence is insufficient 12 to establish a violation of the Eighth Amendment. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 13 2002) (“medical malpractice does not constitute cruel and unusual punishment”) (citation omitted); see 14 also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (even gross negligence is insufficient 15 to establish a constitutional violation). 16 Even still, Plaintiff fails to show the delays—including the delay in sending him outside of the 17 facility during the COVID-19 pandemic— were harmful. It is undisputed the medical record shows 18 Plaintiff was not sent outside the facility due to the pandemic, and he was aware of this reported reason. 19 (See Doc. 45-5 at 10 [Exh. C]; Doc. 45-14 at 16 [Exh. W]; see also Doc. 49-2 at 8, ¶ 38.) Plaintiff does 20 not identify any evidence that his knee injury was “emergent” or required immediate treatment, which 21 may undermine Moore’s decision. Importantly, courts have determined that delays attributed to the 22 COVID-19 pandemic do not establish deliberate indifference by prison officials absent such evidence. 23 See, e.g., Perkins v. Brown, 2025 U.S. App. LEXIS 6671 at *9, 2025 WL 880532 at *3 (7th Cir. Mar. 24 21, 2025) (finding summary judgment in favor of the defendant on the plaintiff’s Eighth Amendment 25 claim was proper where “no evidence undermine[d] statements in [the] medical records attributing the 26 delay to the COVID-19 pandemic” and the plaintiff did not present “evidence for a jury to find that it 27 was outside the bounds of medical professionalism to determine that COVID-19 concerns outweighed 28 his need for medical care”); Gardiner v. Corizon Health, Inc., 2025 U.S. App. LEXIS 6453, at *6-7 1 || (6th Cir. Mar. 19, 2025) (delays in additional tests and surgery did not amount to deliberate 2 || indifference where “much of the delay was attributable to the COVID-19 pandemic, not the 3 || defendants” and affirming summary judgment in favor of the defendant medical professionals). 4 Ultimately, as the magistrate judge determined, Plaintiff fails to identify evidence supporting 5 || conclusion that Moore had the requisite culpable mental state in the challenged actions. Plaintiff onl 6 || offers speculation—not evidence— to suggest Moore was not exercising medical judgement and 7 instead acted in a manner that disregarded an excessive risk to Plaintiffs health. Because Plaintiff fa 8 || to identify admissible evidence to support his claim for deliberate indifference, summary judgment in 9 || favor of Moore is appropriate. See Celotex Corp, 477 U.S. at 322 (summary judgment must be grant 10 || in favor of a defendant when there is a failure of proof regarding an essential element of a claim). 11 |/IV.__ Conclusion and Order 12 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 13 || Having carefully reviewed the entire matter—including Plaintiff's objections— the Court concludes 14 || the Findings and Recommendations are supported by the record and proper analysis. Thus, the Court 15 || ORDERS: 16 1. The Findings and Recommendations issued on August 5, 2024 (Doc. 63) are 17 ADOPTED in full. 18 2. Plaintiff's motion for summary judgment (Doc. 45) is DENIED. 19 3. The Government’s motion for summary judgment (Doc. 48) is GRANTED. 20 4. Moore’s motion for summary judgment (Doc. 58) is GRANTED. 21 5. The Clerk of Court is directed to enter judgment in favor of Defendants and against 22 Plaintiff, and to close this case. 23 24 IT IS SO ORDERED. 25 || Dated: _March 29, 2025 ( LAW pA L. wan 26 TED STATES DISTRICT JUDGE 27 28 15