In re Saucedo on H.C.

Filed 7/7/06 In re Saucedo on H.C. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Raymond A. Cota, Judge. Reversed with directions.

The Department of Corrections (Department) appeals from an order granting relief to Orlan Saucedo in a habeas corpus proceeding. Saucedo, who is incarcerated, filed a petition for writ of habeas corpus in superior court, requesting that the Department be ordered to provide him with a special diet to meet his medical needs. The trial court issued an order to show cause, and then granted Saucedo's requested relief without holding an evidentiary hearing. We conclude there are disputed factual matters that cannot be resolved based on the information provided by the parties in conjunction with their pleadings, and accordingly an evidentiary hearing is required. We reverse the trial court's order and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Saucedo, age 41, has been incarcerated at Centinela prison in the Imperial Valley since 1999. Sometime after his incarceration, he began suffering from constipation, severe stomach aches, and heartburn, and had blood in his stools. In 2003 and 2004, the Department ordered a variety of medical tests, including a colonoscopy and upper gastrointestinal barium examination, to determine the cause of his symptoms. In May 2004, he was diagnosed with duodenitis, a condition involving mild inflammation of the upper gastrointestinal tract. He was variously treated with Metamucil, Bentyl, castor oil, and Prilosec. The doctors who examined him at the Department's request recommended that he eat a high-fiber diet, eliminate cheese and milk consumption, and avoid "greasy" foods. However, the doctors did not recommend that he be provided a "special diet."

During the course of the Department's diagnostic testing of his condition, Saucedo filed a complaint with the Department contending that he needed a special diet. He pursued the complaint through several levels of appeal, but received no dietary assistance or accommodations from the Department. In November and December 2003, he stated in his complaint that the medications he had been prescribed had not alleviated his intense stomach pain. He stated that the doctors had recommended he avoid greasy foods, and he contended the prison foods "contain[ed] great amoun[t]s of grease." He stated he was chronically nauseous after eating; he was sick six days of the week; his stomach pain was intense; and at times he defecated blood. He requested a special diet with less or no grease. The Department referred him to a gastroenterologist for testing, but advised Saucedo that there were no special diets available at Centinela. In February 2004, Saucedo sought further administrative review of his complaint, again stating that the prescribed medication was having no effect. Based on the representation that there were no special diets at Centinela, he requested transfer to another institution that offered this option "due to the extreme severity of [his] condition." The Department continued to send Saucedo for medical examination and testing, but made no dietary accommodations. In April 2004, Saucedo stated in his administrative complaint that the treatments had not worked and the problem was getting worse.

On August 17, 2004, Saucedo, representing himself, filed a petition for writ of habeas corpus in superior court, alleging that the prison food was exacerbating his illness and he needed a special diet to comply with the dietary recommendations of his doctors. After receiving informal responses, the trial court issued on order to show cause and appointed counsel to represent Saucedo.

The Department and Saucedo filed their formal return and traverse, respectively. With his pleadings, Saucedo submitted a copy of a standardized weekly menu used by the prison for a week in April 2005, listing the foods provided for breakfast, lunch and dinner. In its pleadings, the Department contended the standardized menu allowed Saucedo to comply with his doctor's dietary recommendations while still receiving adequate nutrition, and he did not need a special diet. The Department provided a declaration from Dr. Dave Khatri, one of Saucedo's treating physicians. Dr. Khatri stated he reviewed Saucedo's medical file and consulted with a dietician. Dr. Khatri noted Saucedo's duodenitis was currently being treated with Prilosec, and his constipation was being treated with castor oil. Dr. Khatri reported that tests of Saucedo's liver, thyroid, albumin, hemoglobin, and colon were all normal; his weight was normal; and he did not suffer from anemia or malnutrition. Dr. Khatri opined that Saucedo did not require a special diet.

The Department also provided a declaration from Department dietician Sue Summersett. Summersett declared that she prepared the Department's standardized menus for all of the State's prisons; that the standardized menus dictated the "food content, portions and serving sizes to be served" at each meal; and that "individual institution[s] may substitute some items for items of like kind and nutritional value as necessary." Summersett stated that Centinela's standardized menu exceeded recommended daily nutrient requirements for calories, protein, carbohydrates, and fat. She stated the foods in the menu provided 32.09 grams of dietary fiber per day, and that dairy products did not make up a significant portion of the standardized menu and could be removed without creating a nutritional deficiency. She stated the menu contained no more than 30 percent calories from fat, which was "consistent with recommendations by the Nutritional Board of the Institute of Medicine and the American Heart Association, and could therefore not be considered a 'greasy' diet." Summersett opined that an inmate could avoid the occasional "'greasy food'" on the menu and still receive the recommended daily nutrients.

Saucedo disputed the Department's contention that he could follow his doctor's recommendations and still receive an adequate diet from the standardized menu. He maintained that one-third to one-half of the menu consisted of greasy food and dairy products.

Trial Court's Ruling

The trial court granted relief to Saucedo, finding that the standard food at the prison consistently included "greasy" foods and milk/cheese products. The court concluded that although appropriate medications had been prescribed, no alternative foods nor higher fiber foods had been made available for Saucedo to meet his medical needs. The court reasoned that the Department must have been "aware of [Saucedo's] long-standing pain and suffering," and that it had demonstrated a deliberate indifference to his medical needs by denying him the kind of foods he needed and "in effect putting [him] in a position of either eating food which [was] not compatible with his health, or not eating at all . . . ." The court ordered the Department to provide Saucedo with food that excluded "greasy" foods and milk/dairy products and that included high fiber foods.

DISCUSSION

The parties dispute the applicable standard of review. Saucedo argues the case should be governed by the rule applicable to mixed questions of law and fact, requiring deference to predominantly factual issues and independent review of predominantly legal issues. In contrast, the Department argues that the independent review standard applies to the factual resolutions because the trial court decided the matter solely on documentary evidence.

It is clear that deferential review of factual resolutions in a habeas corpus proceeding is the proper standard when the trial court's findings are based on witness testimony. (See In re Pratt (1999) 69 Cal.App.4th 1294, 1308, 1314; In re Collins (2001) 86 Cal.App.4th 1176, 1181; see also In re Malone (1996) 12 Cal.4th 935, 946.) The Department argues that when, as here, the trial court decides the habeas petition entirely on the basis of pleadings and other documents without reliance on witness testimony, the appropriate standard is independent review of the factual findings. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 677 (Rosenkrantz); accord In re Smith (2003) 114 Cal.App.4th 343, 360-361; see also In re Cudjo (1999) 20 Cal.4th 673, 688.) We need not decide this issue because regardless of which standard applies, we conclude the order cannot be sustained on the present record, and the appropriate disposition is to remand the matter for an evidentiary hearing before the trial court.

In a habeas corpus proceeding the burden is on the petitioner to initially plead, and then later prove by a preponderance of the evidence, sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall); Rosenkrantz, supra, 29 Cal.4th at p. 675; In re Cudjo, supra, 20 Cal.4th at p. 687.) The court may request the parties to file an informal response and reply to assist in the determination of whether a prima facie case has been stated in the habeas petition. (People v. Romero (1994) 8 Cal.4th 728, 737, 741-742 (Romero).) If a petitioner's factual allegations, assuming they are true, establish a prima facie case for relief, the court issues an order to show cause, requiring the respondent to file a formal return and the petitioner to file a traverse. (Duvall, supra, 9 Cal.4th at pp. 475-478; Romero, supra, 8 Cal.4th at pp. 737-739.) Once the issues have been joined through the filing of the return and the traverse, the court must determine whether an evidentiary hearing is needed. (Romero, supra, 8 Cal.4th at p. 739.) When there are no disputed factual issues, the merits of the petition can be decided without an evidentiary hearing. (Duvall, supra, 9 Cal.4th at p. 478-479; In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 2.) In contrast, if the pleadings "reveal that the petitioner's entitlement to relief hinges on the resolution of factual disputes, then the court should order an evidentiary hearing." (Romero, supra, 8 Cal.4th at pp. 739-740; In re Serrano (1995) 10 Cal.4th 447, 456.) At the evidentiary hearing, any exhibits that accompany the petition, return, and traverse "are subject to admission into evidence in accordance with generally applicable rules of evidence." (Rosenkrantz, supra, 29 Cal.4th at p. 675.)

As we shall explain, we conclude there are disputed factual issues raised by the pleadings and accompanying documents that cannot be resolved without an evidentiary hearing.

The federal Constitution's Eighth Amendment prohibition against cruel and unusual punishment protects prison inmates from actions amounting to a "deliberate indifference" to their serious medical needs. (Estelle v. Gamble (1976) 429 U.S. 97, 104.) "[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain,' [citation] proscribed by the Eighth Amendment." (Ibid.) However, not "every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." (Id. p. 105.) Deliberate indifference cannot be shown by mere negligence or inadvertence. (Id. at pp. 105-106.) For example, denials of care arising from negligent diagnosis or treatment, or from differences of opinion about the appropriate medical treatment, do not rise to the level of a constitutional violation. (Id. at p. 106; Baird v. Alameida (C.D.Cal. 2005) 407 F.Supp.2d 1134, 1141.)

Rather, deliberate indifference requires a showing of actual intent to harm or recklessness. (Farmer v. Brennan (1994) 511 U.S. 825, 836-840 (Farmer); Brown v. Williams (D.Del. 2005) 399 F.Supp.2d 558, 564.) Recklessness is measured by a subjective standard, requiring actual "know[ledge] . . . [of] a substantial risk of serious harm and disregard[ ] [of] that risk by failing to take reasonable measures to abate it." (Farmer, supra, at pp. 836-840, 847.) An inmate may show an official's subjective awareness of a substantial risk through circumstantial evidence, and "a factfinder may conclude that a[n] . . . official knew of a substantial risk from the very fact that the risk was obvious." (Id. at p. 842; Brown v. Williams, supra, 399 F.Supp.2d at 564.)

In addition to deliberate indifference, an inmate evoking Eighth Amendment protection must also show that his or her medical needs are serious. (Brown v. Williams, supra, 399 F.Supp.2d at p. 564.) Seriousness may be demonstrated by such factors as a physician's diagnosis that treatment is required, or a showing that the inmate is suffering from chronic and substantial pain. (Ibid.; Gutierrez v. Peters (7th Cir. 1997) 111 F.3d 1364, 1373.)

The courts have recognized that a prison's refusal to afford an inmate a medically prescribed diet that may alleviate pain and suffering can constitute the deliberate indifference prohibited by the Eighth Amendment. (Byrd v. Wilson (6th Cir. 1983) 701 F.2d 592, 595; Roberson v. Bradshaw (8th Cir. 1999) 198 F.3d 645, 648; Johnson v. Harris (S.D.N.Y. 1979) 479 F.Supp. 333, 337; Taylor v. Anderson (N.D.Ill. 1994) 868 F.Supp. 1024, 1026; Mandala v. Coughlin (E.D.N.Y. 1996) 920 F.Supp. 342, 353.) To show deliberate indifference a prisoner need not prove that he was completely denied medical care; the requisite showing may be based on the failure to implement a diet that is part of the medical treatment regimen. (See Lopez v. Smith (9th Cir. 2000) 203 F.3d 1122, 1132.)

There is no dispute that Saucedo has been diagnosed with duodenitis; that he has complained of chronic, serious pain; and that his doctors (who examined him at the Department's request) advised him to avoid "greasy" foods, eat no milk and cheese, and eat high fiber foods. The dietary recommendations were included in Saucedo's medical records, and Saucedo repeatedly advised the Department of his chronic pain and asked the Department to assist him in implementing the medically recommended diet. The record shows the Department did not take any affirmative measures to ensure that Saucedo could follow his doctor's recommendations, but simply told Saucedo that no special diets were available. Based on this showing, we agree with the trial court's conclusion that Saucedo made a prima facie showing that the Department was deliberately indifferent to his serious medical needs sufficient to warrant issuance of an order to show cause.

The disputed issue is whether the prison's standard menu allows Saucedo to refrain from eating the prohibited foods (i.e., greasy foods and cheese/milk) and still obtain adequate nutrition, and whether the standard menu provides sufficient high fiber foods. These disputed issues raise various factual questions, including: (1) what is meant by "greasy" foods; (2) what foods in the prison standard menu are prohibited and what foods are permissible under the recommended diet; (3) does the prison make sufficient quantities of the permissible foods available to meet Saucedo's nutritional needs; and (4) does the standard menu provide sufficient high fiber foods?

The Department contends its standard menu contains enough permissible foods to allow Saucedo to follow his doctors' instructions without sacrificing his nutritional needs. The trial court rejected this contention, finding that the menu consistently included "greasy" foods and milk/cheese products and did not include higher fiber foods. The record does not contain sufficient information to establish the Department's contention or to support the trial court's conclusion.

There is no medical information in the record defining what is meant by "greasy" food. There can be a variety of interpretations of what constitutes "greasy" food, and to properly evaluate Saucedo's claim it is necessary to have the term defined for purposes of his medically recommended diet. Without more information on this point, it is impossible to evaluate what foods listed on the menu are acceptable. The dietician apparently equated "greasy" food with fat content, stating the menu was not a "greasy" diet because it did not exceed 30 percent calories from fat. Assuming a low fat diet is part of the recommendation, the information provided by the dietician (which addresses the total daily fat intake provided by the menu) does not indicate whether at any particular meal there are enough low fat food choices to allow Saucedo to eat a sufficient meal. Similarly, the record does not indicate whether Saucedo may obtain increased portions of permissible foods to compensate for any prohibited foods he may need to forego. The record also contains no information regarding whether the menu's provision of 32.09 grams of fiber per day constitutes a high fiber diet as recommended by the doctor, and the extent to which the fiber provided in the standard menu is contained in foods that Saucedo may eat.

Given the dearth of information in the record, an evidentiary hearing is necessary to resolve the disputed fact of whether the prison's standard menu allows Saucedo to follow the diet recommended by his doctors without sacrificing his nutritional needs. Accordingly, we reverse the trial court's order and remand the matter for an evidentiary hearing. At the evidentiary hearing, the parties shall have the opportunity to present admissible evidence, including witness testimony, for the purpose of ascertaining what foods in the standard prison menu should not be eaten by Saucedo, and what, if any, accommodations are warranted to allow compliance with the recommended diet.

DISPOSITION

The order is reversed. The matter is remanded for an evidentiary hearing and ruling on the request for relief in the habeas petition.

HALLER, Acting P.J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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