Kevin Schrubb v. Cindy Kang-Elliott, 16CV-0209

Hearing: Defendant’s Motion for Summary Judgment and Motion for Discovery

Date: April 5, 2018

Motion for Summary Judgment

Plaintiff Kevin Schrubb (“Plaintiff”), a former inmate at the California Men’s Colony (“CMC”), brings this action against Cindy Kang-Elliott, M.D. and Ronald Sohner (“Defendants”). Plaintiff seeks monetary damages for alleged violations of his constitutional rights when he refused to accept mental health treatment from Dr. Kang-Elliott. Dr. Kang-Elliott is a medical doctor and part-time psychiatrist at CMC. Mr. Sohner is a correctional officer at CMC. Defendants bring this motion for summary judgment as to the entire complaint on the ground that there are no triable issues of material fact that (1) Plaintiff has failed to timely or properly file a government tort claim and therefore is barred from bringing claims arising under California law; (2) no facts support Plaintiff’s causes of action alleged under California law or the federal constitution; and (3) Defendants are entitled to qualified immunity for any alleged constitutional violations. Plaintiff opposes the motion.

Defendants as the moving party have the initial burden to make a prima facie showing that there are no triable issues of material fact and that they are entitled to adjudication as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In particular, Defendants bear “the burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Id., quoting California Code of Civil Procedure §437c(p)(2).) If Defendants make a prima facie showing then the burden shifts to Plaintiff to produce admissible evidence showing a triable issue of material fact exists. (Code Civ. Proc. §437c(p)(2).) Defendants set forth 20 undisputed material facts in their separate statement.

In reviewing the documents submitted in this case, it appears that the Court is missing key documents from Plaintiff. Plaintiff’s opposition and separate statement cite to exhibits, including discovery responses and deposition transcripts, yet no such exhibits were submitted to the Court. Moreover, Defendants filed an opposition to “Plaintiff’s Request for Judicial Notice in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment” (that apparently requests the Court take notice of 31 documents), however, no such Request for Judicial Notice is on file with the Court.

Because the Court is missing Plaintiff’s evidence submitted in connection with his opposition to the Motion, it cannot rule at this time. Plaintiff is instructed to file his Request for Judicial Notice and exhibits. The Court continues the hearing on the motion for summary judgment and will send notice of the new date.

2

Motion for Discovery

Plaintiff filed a motion to compel compliance with discovery requests on November 27, 2017. Defendants represent that their responses to the discovery were served on Plaintiff on November 30, 2017. Plaintiff has stated in a document served on Defendants that he received the responses in time to oppose the motion for summary judgment and requested that the motion for discovery be cancelled. Therefore, the Court need not rule on the motion for discovery.