govinfo:USCOURTS-caed-2_01-cv-01218-17

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
EVERETT McCOY, 
 Plaintiff,       No. CIV S-01-1218 DFL GGH P
vs.
CAL TERHUNE, et al.,
 Defendants. ORDER
                                                          /
 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
seeking relief under 42 U.S.C. § 1983.  The matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
 On August 16, 2006, the magistrate judge filed findings and recommendations
herein which were served on all parties and which contained notice to all parties that any
objections to the findings and recommendations were to be filed within twenty days.  Both
parties have filed objections to the findings and recommendations.
 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-
304, this court has conducted a de novo review of this case.  Having carefully reviewed the entire
file, the court adopts the findings and recommendations in part, but declines to adopt them as to
the following claims. 
Case 2:01-cv-01218-JAM-GGH     Document 137     Filed 03/30/07     Page 1 of 4
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The court grants summary judgment for defendants Massey, Martel, and Chastain as to
plaintiff’s due process claims related to his placement in administrative segregation.  The Due
Process Clause alone creates no liberty interest in remaining in the general prison population. 
Hewitt v. Helms, 459 U.S. 460, 468 (1983) (overruled on other grounds).  “States may under
certain circumstances create liberty interests that are protected by the Due Process Clause,” but
the interests are limited to freedom from conditions that impose “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.”  Sandin v. Conner, 515
U.S. 472, 483-84 (1995).  McCoy has not offered sufficient evidence to demonstrate that his
placement in administrative segregation subjected him to such hardship.  Therefore, no material
dispute of fact exists as to whether the administrative segregation decisions by defendants
violated McCoy’s due process rights.  
The court grants summary judgment for defendants Johnson, Shoemaker, Jaffee, Rosario,
Kelly, Terhune, Plilier, and Clareve as to plaintiff’s various Eighth Amendment medical care
claims, with the exception of claims that the magistrate judge found defendants failed to raise in
the summary judgment motion.  Disputes of medical opinion cannot support a § 1983 deliberate
indifference claim.  See Estelle v. Gamble, 429 U.S. 97, 107-08 (1976).  The magistrate judge
states that defendants have not provided information concerning how their treatment of plaintiff’s
other mental illnesses adequately treated his post-traumatic stress disorder (PTSD).  Defendants,
however, submit that the prescribed treatment addressed symptoms common to plaintiff’s PTSD
and other mental illnesses.  The dispute, therefore, is over whether such symptom-based
treatment of different illnesses is appropriate.  It was plaintiff’s burden to demonstrate that the
defendants’ approach was not a legitimate medical opinion.  He has not done so.  Similarly, an
evaluation of whether defendants properly required plaintiff to comply with the prison’s heat-risk
policy as part of the treatment for his mental illnesses concerns judgments of appropriate medical
care.  A challenge to either the prison’s heat-risk policy or defendants’ failure to exempt plaintiff
from it would involve expert judgments as to medical risks and advantages.  Plaintiff fails to
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provide medical opinions to counter those provided by defendants.
The court finds that defendants did not raise plaintiff’s retaliation claims in their
summary judgment motion.  Given the novel and fact-intensive nature of the claims, the court
declines to address them sua sponte.  Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312-13 (9th Cir.
1982).  The court will allow further briefing on the retaliation claims.   
 Accordingly, IT IS HEREBY ORDERED that:
 1.  The findings and recommendations filed August 16, 2006 are adopted except
as to the following claims: 1) plaintiff’s due process claim against defendant Massey; 2)
plaintiff’s due process claim against defendants Martel and Chastain; 3) plaintiff’s Eighth
Amendment claim against defendants Johnson, Shoemaker, and Jaffee concerning their treatment
of plaintiff’s post-traumatic stress disorder; 4) plaintiff’s Eighth Amendment claim against
defendants Jaffee and Kelly concerning their treatment of plaintiff’s mental illnesses while he
was in administrative segregation; 5) plaintiff’s Eighth Amendment claims against defendants
Terhune, Plilier, Rosario, Jaffee, Johnson, Kelly, Clareve, and Shoemaker concerning their
enforcement of the prison’s heat-risk policy and treatment of plaintiff’s mental illnesses; and 6)
plaintiff’s claims concerning defendants’ retaliation against him for exercising a constitutionally
protected right;   
 2.  Defendants’ September 8, 2005 summary judgment motion is denied as to the
following claims:  1) plaintiff’s Eighth Amendment claim against defendant Andrade concerning
plaintiff’s access to medical care following his return to the jail and the doctor’s order that
plaintiff be woken up every two hours; 2) plaintiff’s Eighth Amendment claim against defendant
Advincula concerning the denial of plaintiff’s cane and plaintiff’s pushing of a cart carrying
prisoner belongings; 3) plaintiff’s Eighth Amendment claim against defendant Holmes
concerning the assignment of plaintiff to an upper tier; 4) plaintiff’s Eighth Amendment claim
against defendants Chastain, Martel, Mini, and Shoemaker concerning their consideration of
plaintiff’s mental health problems when they retained him in administrative segregation; 5)
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plaintiff’s Eighth Amendment claim against defendants Stiles and Clavere concerning their
assignment of plaintiff to the “walk alone” yard; and 6) plaintiff’s Eighth Amendment claim
against defendant Clavere concerning the order that plaintiff be double celled; 
 3. Defendants may file an additional summary judgment motion before the
assigned magistrate judge  regarding  plaintiff’s retaliation claims unaddressed by the prior
motion.  If defendants choose to file a motion, it is due 30 days after the entry of this order; and  
 4. Defendants’ September 8, 2005, summary judgment motion is granted in all
other respects.
DATED:   March 30, 2007
 /s/ David F. Levi                                    
 UNITED STATES DISTRICT JUDGE
/mcco1218.806
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