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`Case 1:21-cv-01343-KES-CDB Document 79 Filed 04/11/25 Page 1 of 32
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`FRANK MONACO BAZZO,
`Plaintiff,
`
`v.
`
`S. GATES,
`
`Defendant.
`
`Case No. 1:21-cv-01343-KES-CDB (PC)
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`FINDINGS AND RECOMMENDATIONS
`REGARDING THE PARTIES’ CROSS
`MOTIONS FOR SUMMARY JUDGMENT
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`(Docs. 64 & 65)
`
`ORDER DENYING PLAINTIFF’S
`MOTION FOR ENTRY OF DEFAULT
`
`(Doc. 69)
`
`
`
`
`Plaintiff Frank Monaco Bazzo is a state prisoner proceeding pro se in this civil rights
`action filed under 42 U.S.C. § 1983.
`I.
`INTRODUCTION
`The Court issued its Discovery and Scheduling Order on December 11, 2023. (Doc. 53.)
`Relevant here, the deadline for filing dispositive motions was extended from October 21, 2024, to
`November 12, 2024. (Doc. 63.)
`On October 30, 2024, Plaintiff filed a motion for summary judgment, or alternatively, for
`summary adjudication. (Doc. 64.) On November 12, 2024, Defendants Bobbala and Gates filed a
`motion for summary judgment. (Doc. 65.)
`On November 20, 2024, Defendants filed their opposition to Plaintiff’s motion for
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`summary judgment. (Doc. 66.) On November 27, 2024, Plaintiff filed his opposition to
`Defendants’ summary judgment motion. (Doc. 67.) That same date, Plaintiff filed a document
`titled “Notice of Motion and Motion for Entry of Default Pursuant Rand Warning Due to
`Defendants’ Failure to Oppose or Reply to Bazzo’s Motion for Summary Judgment or in the
`Alternative, Adjudication filed October 21, 2024. Alternatively, Reply and Opposition to Moot
`Motion for Summary Judgment by Defendants.” (Doc. 69.) Plaintiff also filed a motion for
`preliminary injunction on this date. (Doc. 70.)
`On December 4, 2024, Plaintiff filed a document titled “Response by Bazzo to
`Defendants’ Statement of Undisputed Facts in Opposition to Their Response to Bazzo’s
`Summary Judgment Motion.” (Doc. 71.)
` On December 17, 2024, Defendants filed their oppositions to Plaintiff’s motions
`concerning entry of default and preliminary injunction. (Docs. 73 & 74.)
`Lastly, on January 23, 2025, Plaintiff filed a document titled “Reply to Defendants
`Opposition to Bazzo’s Mandatory Injunctive Relief to be Transferred to a Medical Facility.”
`(Doc. 75.)
`II.
`
`APPLICABLE LEGAL STANDARDS
`Motions for Summary Judgment
`Summary judgment is appropriate when it is demonstrated that there “is no genuine
`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
`Civ. P. 56(a). A party asserting that a fact cannot be disputed must support the assertion by
`“citing to particular parts of materials in the record, including depositions, documents,
`electronically stored information, affidavits or declarations, stipulations (including those made for
`purposes of the motion only), admissions, interrogatory answers, or other materials....” Fed. R.
`Civ. P. 56(c)(1)(A).
`Summary judgment should be entered, after adequate time for discovery and upon motion,
`against a party who fails to make a showing sufficient to establish the existence of an element
`essential to that party's case, and on which that party will bear the burden of proof at trial. See
`Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[A] complete failure of proof concerning an
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`essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”
`Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party
`to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec.
`Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the
`existence of this factual dispute, the opposing party may not rely upon the allegations or denials
`of their pleadings but is required to tender evidence of specific facts in the form of affidavits,
`and/or admissible discovery material, in support of its contention that the dispute exists or shows
`that the materials cited by the movant do not establish the absence of a genuine dispute. See Fed.
`R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the
`fact in contention is material, i.e., a fact that might affect the outcome of the suit under the
`governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv.,
`Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Further, the opposing
`party must also demonstrate that the dispute is genuine, i.e., the evidence is such that a reasonable
`jury could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818
`F.2d 1433, 1436 (9th Cir. 1987). In the endeavor to establish the existence of a factual dispute,
`the opposing party need not establish a material issue of fact conclusively in its favor. It is
`sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the
`parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the
`“purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see
`whether there is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P.
`56(e) advisory committee's note on 1963 amendments).
`In resolving the summary judgment motion, the evidence of the opposing party is to be
`believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the
`facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475
`U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party’s
`obligation to produce a factual predicate from which the inference may be drawn. See Richards v.
`Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th
`Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply
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`show that there is some metaphysical doubt as to the material facts.... Where the record taken as a
`whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine
`issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
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`
`Eighth Amendment: Conditions of Confinement
`The Eighth Amendment protects prisoners from inhumane methods of punishment and
`from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v.
`Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison
`officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,
`sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000)
`(quotation marks & citations omitted). To establish a violation of this duty, a prisoner must first
`demonstrate an objectively serious deprivation, one that amounts to the denial of “the minimal
`civilized measures of life’s necessities.” Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)
`(quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Second, a prisoner must demonstrate
`that prison officials acted with “deliberate indifference.” Wilson v. Seiter, 501 U.S. 294, 303
`(1991); Johnson, 217 F.3d at 733. A prison official is liable for denying an inmate humane
`conditions of confinement only if “the official knows of and disregards an excessive risk to
`inmate health and safety; the official must both be aware of facts from which the inference could
`be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
`Farmer, 511 U.S. at 837.
`The Supreme Court held that “extreme deprivations are required to make out a conditions-
`of-confinement claim. Because routine discomfort is ‘part of the penalty that criminal offenders
`pay for their offenses against society,’ ‘only those deprivations denying the minimal civilized
`measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
`violation.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citations omitted).
`Adequate food is a basic human need protected by the Eighth Amendment. Hoptowit v.
`Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) (abrogated on other grounds by Sandin v. Conner, 515
`U.S. 472 (1995)). “Food is one of life’s basic necessities,” and the government is obligated to
`provide those in its custody “with adequate sustenance on a daily basis.” Foster v. Runnels, 554
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`F.3d 807, 812-14 (9th Cir. 2009). “The Eighth Amendment requires only that prisoners receive
`food that is adequate to maintain health; it need not be tasty or aesthetically pleasing.” LeMaire v.
`Maass, 12 F.3d 1444, 1456 (9th Cir. 1993). As another judge of this Court has observed, the state
`is obligated to provide “‘nutritionally adequate food that is prepared and served under conditions
`which do not present an immediate danger to the health and well-being of the inmates who
`consume it,’” and “the state health code, while not establishing ‘constitutional minima,’ is
`relevant in making a finding regarding the constitutionality of existing conditions.” Jackson v.
`Walker, No. CIV S-06-2023 WBS GGH P, 2009 WL 1743639, at *8 (E.D. Cal. June 17, 2009)
`(quoting Ramos v. Lamm, 639 F.2d 559, 570–71 (10th Cir. 1980), cert denied, 450 U.S. 1041
`(1981)).
`Sustained deprivation of food that results in pain without any penological purpose can
`amount to cruel and unusual punishment. Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002).
`“In the same way that an inmate relies on prison officials to provide appropriate medical care …
`and protection from assaults by other inmates … inmates rely on prison officials to provide them
`with adequate sustenance on a daily basis. The repeated and unjustified failure to do so amounts
`to a serious depravation.” Foster, 554 F.3d at 814 (citations omitted). See, e.g., Franklin v. State
`of Or., State Welfare Div., 662 F.2d 1337, 1347 (9th Cir. 1981) (holding that allegations that
`prison officials ignored inmate’s request for food after he informed them that he “was having an
`insulin reaction” sufficient to state a claim provided officials’ actions were undertaken with
`deliberate indifference) (citing inter alia Ramos, 639 F.2d at 559).
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`Eighth Amendment: Deliberate Indifference to Serious Medical Needs
`Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a
`prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need
`is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton
`infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v.
`Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059
`(9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th
`Cir. 1997) (en banc)).
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`To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must
`first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition
`could result in further significant injury or the unnecessary and wanton infliction of pain. Second,
`the plaintiff must show the defendants’ response to the need was deliberately indifferent.”
`Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096).
`As to the first prong, indications of a serious medical need “include the existence of an
`injury that a reasonable doctor or patient would find important and worthy of comment or
`treatment; the presence of a medical condition that significantly affects an individual’s daily
`activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060,
`1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at
`1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs
`include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and
`worthy of comment or treatment; the presence of a medical condition that significantly affects an
`individual’s daily activities; or the existence of chronic and substantial pain”).
`As to the second prong, deliberate indifference is “a state of mind more blameworthy than
`negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or
`safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
`Deliberate indifference is shown where a prison official “knows that inmates face a substantial
`risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id.
`at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a
`prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680
`F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was
`substantial; however, such would provide additional support for the inmate’s claim that the
`defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096 (citing McGuckin, 974
`F.2d at 1060).
`Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060
`(9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from
`which the inference could be drawn that a substantial risk of serious harm exists,’ but that person
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`‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison
`official should have been aware of the risk, but was not, then the official has not violated the
`Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. Cnty. of Washoe,
`Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). To prevail on a deliberate indifference claim, a
`plaintiff must also show that harm resulted from a defendant’s wrongful conduct. Wilhelm, 680
`F.3d at 1122; see Jett, 439 F.3d at 1096.
`III. THE FACTUAL ALLEGATIONS & THE SCREENING FINDINGS
`Plaintiff alleges documentation and testing indicate he suffers from “articulated
`anaphylactic reaction to peanuts – gastric intolerances to spicy foods – peppers-onions-beans and
`shell fish.” He asserts he has “IBSD,” a hiatal hernia, and “Schatsky ring that causes GERD in
`addition to hyperacidity controlled by Prevacid BID.” Plaintiff contends that since 2010 the
`prison system has failed to provide him “sustenance and appropriate protein nutrition” by failing
`to substitute “offending foods” or allowing him to purchase “ENSURE and food stuff in catalogs
`allowed to women only.” He further states he “is now a Covid long hauler and has lost presently
`60% of his taste sense ….” Plaintiff alleges he “has missed hundreds of meals whereby the
`offending agents (proteins) were not replaced,” causing “loss of muscle mass and other existential
`pathologies.” Plaintiff also contends he has been denied a kosher diet. (Doc. 23.)
`At screening, the Court construed Plaintiff’s first amended complaint to assert an Eighth
`Amendment conditions of confinement claim and an Eighth Amendment deliberate indifference
`to serious medical needs claim. (Doc. 25 at 8-13.) It found Plaintiff stated cognizable Eighth
`Amendment claims against Defendants Gates and Bobbala and Does 1 through 5 but failed to
`state any other cognizable claims against any other named defendant. (Id. at 13-15.) In response
`to the screening order, Plaintiff stated he did not wish to file an amended complaint, and
`accordingly, the undersigned issued findings and recommendations that this action proceed only
`on the claims found cognizable. (Doc. 27.) On June 30, 2023, the formerly assigned district judge
`adopted those findings and recommendations, noting this action was to proceed only as to
`Plaintiff’s Eighth Amendment conditions of confinement and deliberate indifference to serious
`medical needs claims against Defendants Gates and Bobbala, and unknown Does 1 through 5, and
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`that all remaining claims were dismissed. (Doc. 28.)
`IV.
`SUMMARY OF THE PARTIES’ BRIEFING
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`Plaintiff’s Motion for Summary Judgment (Doc. 64)
`Plaintiff argues that: (1) this Court has already assessed deliberate indifference; (2) the
`government must provide prisoners with proper nutrition, not toxic food; (3) Defendants are
`liable by failing to provide Plaintiff with proper nutrition based on a pure medical issue; (4)
`Plaintiff has accumulated evidence to support his genuine nutritional needs since 2016; (5)
`Defendants have summarily refused to correct and/or allow constitutional violations to continue
`about which there is no dispute because their defenses were not advanced or are not supported;
`(6) during discovery, Defendants failed to meaningfully explain their roles or explain their
`defenses; (7) Defendant Gates violated Plaintiff’s due process rights by failing to correct the
`violation asserted in administrative appeals and Defendant Bobbala was deliberately indifferent
`for failing to correct “real travails and unnecessary suffering” and by creating a “risk of
`pathological exacerbation and unnecessary suffering;” and (8) Defendants’ knowledge of a
`constitutional violation “by tacit acquiescence should not be condoned” because inmates “are at
`best impotent to have choices or decisions for their benefit in health and welfare” and the
`Defendants “are not particularly anointed to do as they please; their actions are “non-defensible
`on their faces.”
`Defendants’ Opposition
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`Defendants contend Plaintiff’s summary judgment motion should be denied because the
`evidence shows they did not subject him to inhumane conditions of confinement nor were they
`deliberately indifferent to Plaintiff’s medical needs. (Doc. 66.)
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`Plaintiff’s Reply1
`Plaintiff alleges Defendants have improperly opposed his summary judgment motion by
`filing an “incompatible” one of their own and asserts Defendants have “waived their objection
`and/or opposition … by their failure to timely respond according to FRAP 56 and RAND.” (Doc.
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`1 Plaintiff’s filing also serves as his opposition to Defendants’ motion. Thus, here, the Court summarizes Plaintiff’s
`position only to the extent it directly replies to Defendants’ opposition to his motion.
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`68.)
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`Plaintiff’s Filing of December 4, 2024
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`Following the timely reply above, on December 4, 2024, Plaintiff also filed a document
`titled “Response by Bazzo to Defendants’ Statement of Undisputed Facts in Opposition to Their
`Response to Bazzo’s Summary Judgment Motion.” (Doc. 71.)
` Plaintiff states: “Obviously, Bazzo globally objects to defendants’ disputed facts since not
`supported by the facts of the case regarding a nutritional necessity ….” He contends Defendants
`“have failed to establish any fact that has any tension with Bazzo’s – in the face – undisputed
`facts that have had gepmetry since 2010.” Plaintiff asserts he has cited to relevant pleadings and
`“whatever documentation had been gathered from defendants who put up either walls of moot
`and conclusory affirmative actions – per se – not supportive – but also refused asked admissions
`and further documentation under the flag of immunity or non duty to do so.”
`Plaintiff states he “only relies on one – indivisible – perennial – uncontroverted fact since
`2010: ‘THE NECESSITY OF A DIET BECAUSE OF MANY PRISMATIC FEATURES OF
`HIS PHYSIO-ANATOMY.’ PERIOD!” He contends he has proven his claims “for 14 years in
`several courts” only to be thwarted by the “PRO BONO gorilla freely donated to CDCR’s
`psychotic minions who are immune from opening their wallets every time they gleefully, torture a
`prisoner.”
`The Court construes Plaintiff’s filing to dispute Defendants’ statement of undisputed fact
`numbers 1 through 6, 8, 10, 11, and 19 through 26, and to partially dispute numbers 9, 12, 13, 17
`and 18. Numbers 7 and 14 through 16 are not disputed.
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`Defendants’ Motion for Summary Judgment (Doc. 65)
`Defendants argue they are entitled to summary judgment because Defendant Bobbala was
`not involved in Plaintiff’s medical care, nor has Plaintiff presented any evidence to show Bobbala
`deprived Plaintiff of the minimal measures of life’s necessities or how she acted with deliberate
`indifference. Further, they contend Defendant Gates did not personally review Plaintiff’s
`headquarters level grievances and thus had no personal involvement. Defendants maintain that
`even had Gates reviewed them, she is not a medical professional and would not be able to
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`determine whether Plaintiff required a special diet. Finally, Defendants contend the grievance
`procedure establishes only a procedural right and does not confer a substantive right to inmates
`that would serve as a basis for liability in this civil rights action.
`Plaintiff’s Opposition2
`
`
`Plaintiff disputes Defendants’ statement of disputed facts, stating he “has already stated
`the issues of no disputed facts in his” own motion, and contends Defendants’ “proposed willy-
`nilly” facts “using a plethora of perfunctory ‘exhibited medical documents’” that are irrelevant.
`Next, Plaintiff asserts he should have been noticed pursuant to HIPPA that his personal medical
`records would be made public without a court order and that the progress notes “are exquisitely
`outside of the complaint of necessity to be fed” or not to be fed toxic food. He maintains the
`progress notes support “the undisputable anatomical structure aberration of GERD” and other
`conditions establishing his diet is constitutionally inadequate. Plaintiff denies having an EpiPen in
`prison as reflected in the Progress Notes and disputes that a nurse practitioner “can determine
`anything contrary to medical practice; he maintains Dr. Estoch “made the absolute determination
`that [he] needed a medical diet.”
`Plaintiff also argues Defendant Gates’ position as Chief of Risk Management is a “fixed
`nexus” as concerns causation, that she alone denies all grievances as a matter of policy, and
`refused to answer interrogatories and requests for admissions “using inane affirmative defenses
`and implausible denials.” He contends Gates did in fact sign a January 19, 2019, health care
`response to his grievance and therefore she is lying. Even where others signed for Defendant
`Gates, Plaintiff asserts she is ultimately responsible for the denial and bears the burden of proof
`“of reasonableness.” Next, Plaintiff argues Defendant Bobbala’s declaration fails to explain her
`functions as an administrator, “parrot[s] the allergy ‘intolerance protocol of CDCR’” and “misses
`the point” of his grievances. Plaintiff maintains it is not medically sound “to starve prisoners
`allergic to intolerable foods” and maintains “it is guaranteed” that “serious professional Ph’d
`Nutritionists” will disagree with Defendant Bobbala at trial. Plaintiff contends he cannot file a
`
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`2 See n.1, ante; see also Doc. 68. Here, the Court summarizes the relevant filing as concerns Plaintiff’s opposition to
`Defendants’ summary judgment motion.
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`grievance against a chief medical officer at one prison from another prison. Plaintiff contends
`Defendant Bobbala is reticent to divulge her real function as the executive administrative medical
`officer and as a panelist who is responsible for “inmates’ diet structuring in toto.”
`In conclusion, Plaintiff alleges Defendants’ declarations “are DISPUTABLE TO THE
`MAX since misinterpreted-inaccurate and not responsive” to the issues he complains of.
`V.
`PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS
`In his summary judgment motion, under the heading “Deliberate Indifference Claim
`recognized by this court,” Plaintiff offers the following facts as undisputed:
`1. The government must provide adequate medical care to incarcerated persons and a
`failure to do so violates the Eighth Amendment, citing to Estelle v. Gamble, 429 U.S.
`97, 2013 (1976)
`2. Defendants had the requisite mental state, knowingly and acting under color of law, to
`understand, on one hand, Defendant Gates was consciously denying a remedy
`protected by the Eighth Amendment; on the other hand, Defendant Bobbala, a
`physician, swore the Hippocratic oath not to injure or interfere with sound medical
`prophylaxis
`3. The only way Plaintiff can avoid injury, specifically a lethal anaphylactic reaction to
`an allergen, was to request a replacement of the peanut protein in his diet with another
`protein. This requires a special diet and is noted in Plaintiff’s file and medical history
`4. In a recent endoscopic examination by Dr. Hauch, a specialist gastroenterologist under
`CDCR contract, it was discovered via microscopic pathological examination that
`Plaintiff’s gastric mucosa had changed into metaplastic disease, a precursor to
`stomach cancer, and at his age of 85, a death penalty
`5. Defendants are able to have reasoned the validity of Plaintiff’s medical needs
`considering Defendant Gates’ final remedy denial based on her non-medical opinion
`and Defendant Bobbala’s construction of prison menus dependent upon cost rather
`than nutritional value at a toxicity cost anathema to medical practice. Both Defendants
`were in a position to take the necessary steps to avert Plaintiff’s injuries but failed to
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`do so intentionally and with deliberate indifference to a fellow human being and
`elderly prisoner suffering from medical aberrations. In addition, the causation of the
`metaplasia must be focused upon because it entertains toxicity to the cellular changes.
`The court should then, in the least, approach the causation issue with an individualized
`approach as to each Defendants’ branch of expertise and responsibility weighing on
`the overall tree of proper health care reasonably expected by public policy forking out
`billions of dollars each year for the proper maintenance of CDCR’s impotent wards
`6. FRAP 56 allows a party to move for summary judgment, identifying claims of suit, on
`which summary judgment is sought. The court shall grant summary judgment if the
`movant shows that there is no genuine dispute as to any material fact and the movant
`is entitled to judgment as a matter of law. The Third Circuit has taken into
`consideration “well pleaded averments” by claimants against summary judgment by
`CDCR’s Attorney General motions for summary judgment. The very mission of a
`summary judgment procedure in this 14-year-old case, is to consider Plaintiff’s
`averments since 2016 insisting with the same litany of medical care, denied by each
`cement walled brain, ultimately leading to a catastrophic disease. Thus, the solemnity
`of Plaintiff’s pleadings vastly has outclassed the venal motives of no mea culpas from
`a host of Defendants, directly responsible for prisoners’ welfare. In a jury trial, the
`facts would easily shock the conscience of each juror and judge
`7. The court, by its own experience with CDCR cases – [filed by inmates] in pro per –
`must realize that denials are a matter of routine practice by the prisons deliberately
`supported by the likes of Defendants and conflicted by defense by the Peoples’
`$9,000,000,000 dollar behemoth AG Office Pro Bono
`8. Plaintiff is allergic to peanut protein. CDCR’s weekly menu contains four to five
`servings of peanut butter. CDCR’s box lunches are not labeled, and thus, Plaintiff
`cannot consume them because of a lack of labeled ingredients; however, most snacks
`visibly contain peanut butter. Plaintiff suffers from GERD and cannot process foods
`that increase hydrochloric acid
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`9. It is medically undisputed that increase of gastric acid increases the change of
`hydrochlorophilic bacterium Helicobacter pylori, a per se carcinogen
`10. For over 14 years Plaintiff has endeavored, at each prison to which he was
`involuntarily transferred, to seek a proper nutritional diet to no avail; his requests are
`always denied by Defendant Gates as the last resort to have a claim reasonably
`adjudicated
`11. Defendant Bobbala was hired under contract with CDCR to oversee nutritional
`programs, such as “Heart Healthy Menus” and has unequivocally stated that “the
`menu given to the inmate population is toxic, causing all kinds of metabolic
`pathologies as well as emotional syndromes”
`12. The above panel, comprised of registered dieticians and medical doctors approve of
`the 26 weeks of rotational menus that offer the same foods for years
`13. CDCR’s yearly cost for food for each prisoner is $1,000 out of the $160,000 allotted,
`86% of the $18,000,000,000 per year used for nabob salaries and benefits, wasted to a
`totally failed (on purpose) system based on the industry of incarceration, not certainly
`correction or rehabilitation, and doubly certainly not on proper medical care (including
`nutrition) or Federal Receiver Kelso would not still be in place since 2005 at a salary
`of $600,000 per year on the back of taxpayers, for almost 20 years. Ludicrous at worst
`14. According to the Health care nutritional board, described ante, the food purchased at
`auction must be given to the cheapest bidder at the expense of quality and higher
`preservatives content
`15. Plaintiff has tried for 14 years to receive either a medical diet or a Kosher diet and was
`denied even after In re Garcia was decided by a court of higher authority, only
`because of the much higher cost of the Halal diet
`16. Plaintiff has been diagnosed with Complete Intestinal Metaplasia of his gastric cell[s]
`that lead[s] to gastric cancer, whereby gastric resection is the remedy. Plaintiff has
`been scheduled for “gastric mapping” to discover the extent of the metaplasia,
`additional dysplasia, or malignancy. It is obvious that his new injury shall be dealt
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`with [in] the appropriate lawsuit on a later date and not intertwined with the case at bar
`asking for c