Metropolitan News-Enterprise


Monday, November 3, 2008


Page 1


C.A. Revives Prisoner’s Action Against Officials Over Diet

Justices Say Trial Judge Denied Inmate Access to the Court




A California Medical Facility inmate claiming that his illness was aggravated because prison dieticians failed to provide the special diet that prison doctors said he needed was denied meaningful access to the trial court, the First District Court of Appeal ruled Friday. 

Div. Three reversed a summary judgment in favor of officials at CMF. Justice Martin Jenkins, writing for the Court of Appeal, said Solano Superior Court Judge Paul Beeman abused his discretion in failing to take steps to protect the rights of self-represented prisoner John Apollo.

Apollo—who represented himself on appeal as well as in the trial court—alleged in his complaint that, although he was transferred from Folsom State Prison to CMF because he needed a special diet as a result of his condition, diverticulitis of the colon, he was given a standard diet. The medical staff at CMF had prescribed a high fiber, low fat, no dairy, no spice, and minimal meat (chicken and fish only) diet, but the dieticians had told him that they, not the medical staff, determined what prisoners eat.

The lack of proper diet, he alleged, caused him to suffer chronic light-headedness, dizziness, weakness, fatigue, stomach cramps, diarrhea and a swelled stomach. After exhausting his administrative remedies within the prison, and having his tort claim rejected by the California Victim Compensation and Government Claims Board, he filed suit.

In his complaints for damages—which the court later consolidated—he named as defendants Dr. D. Hawley, M.D.”; “E. Gayaomi, R.D.”; and “Ms. Mann, R.N.” He identified Hawley as a doctor who told dieticians that he did not need a special diet, even though other doctors—who, unlike Hawley, had examined him—said he did; Gayaomi as the “food administrator” who refused to provide the special diet, and Mann as a nurse from whom he sought assistance, unsuccessfully, in attempting to get his diet.

He subsequently was told that “Gayaomi” was a misspelling of Gyaami, and amended the complaint accordingly.

The doctor and nurse were eventually dismissed for lack of personal service. Apollo appealed those dismissals, contending that prison officials and the court failed to heed his pleas for assistance in completing such service, the defendants having left the prison subsequent to the events on which the suit was based.

Gyaami moved for summary judgment, arguing that the claims were untimely under the Government Claim Acts, and that she had discretionary-function  immunity under Government Code Sec. 820.2 and qualified immunity from liability for failure to provide medical care under Sec. 845.6.

What subsequently transpired was, Jenkins explained for the Court of Appeal, “a lengthy litigation process, much complicated by appellant’s incarceration, lack of funds and lack of legal representation.”

That process included a summary judgment hearing in February of last year. While the plaintiff was supposed to appear telephonically, the hearing was delayed for an hour and a half—for reasons the justice said were unclear for the record—and the plaintiff was sent back to his housing unit. When he failed to return to the telephone by nine minutes past the rescheduled hearing, the judge went ahead, found that the plaintiff had not filed written opposition, and granted summary judgment on all three of the grounds asserted.

Apollo sent the court a letter protesting the decision. He explained that he did not know the new hearing time until a prison litigation officer came to the library to tell him he was on “court call,” that he then went to his cell to get his papers but was delayed because cells are only unlocked at specific times, and that he got his papers and returned to the phone as quickly as he could, only to be told that the hearing was over.

He then filed repeated motions to vacate or reconsider the summary judgment and the dismissals for lack of service. He claimed that the CMF mailroom, the litigation office, and the trial court clerk had subjected him to “an obstruction of justice...since the very start of this claim” and asked the judge to order that he brought to court for a hearing.

All of the plaintiff’s motions were denied. He was not present, either in person or by telephone, for any of the hearings.

In concluding that Apollo was denied meaningful access, Jenkins cited Yarbrough v. Superior Court (1985) 39 Cal.3d 197, which requires trial judges to protect the rights of indigent prisoners who are parties to civil litigation. The ruling grants the court broad discretion as to how to do that, including “as the last alternative,” appointment of counsel.

While that discretion is broad, Jenkins wrote, “trial court does not have discretion to choose no remedy in cases where the prisoner’s civil action is bona fide and his or her access to the courts is being impeded.”

The record, the justice explained, showed that the plaintiff had made reasonable efforts to effect service, as well as file court documents in a timely manner and to appear at hearings; that he had repeatedly asked for appointment of counsel; and that the plaintiff appeared to have a bona fide case.

Jenkins acknowledged that pro per plaintiffs have no greater rights than represented ones, and that trial courts are expected to move cases expeditiously. “Adherence to these important principles, however, must yield to the even greater principles of providing in propria persona litigants with meaningful access to the courts and of deciding bona fide civil actions on their merits.”

The case is Apollo v. Gyaami, 08 S.O.S. 6017.


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