ORDER ADOPTING FINDINGS AND RECOMMENDATIONS THAT DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT BE DENIED

ECF No. 179

LAWRENCE J. O'NEILL, Chief District Judge.

Plaintiff Raymond Baldhosky is a former state prisoner proceeding with counsel in this civil rights action brought 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 Rule 302.

On May 6, 2019, the magistrate judge issued findings and recommendations to deny defendants' motion for partial summary judgment. ECF No. 179. Defendants filed objections to the findings and recommendations on May 20, 2019. ECF No. 187. In their objections, defendants make four primary arguments, which the court will address in turn.

First, defendants argue that the magistrate judge "relied on [an] inadmissible and untimely expert opinion." Id. at 1-3. Defendants reference an expert declaration that included opinions of plaintiff's expert that were not disclosed prior to the expert-discovery deadline.1 See Godoy Decl. ¶¶ 7-12 (opining that exposing a wound to feces can lead to infection, that a MRSA infection can cause death, and that it is sometimes appropriate for a nurse to deviate from a doctor's order). In the findings and recommendations, the magistrate judge acknowledged the declaration's untimeliness but concluded that this late disclosure was harmless:

ECF No. 179 at 7-8. Despite defendants' protestations to the contrary, the court agrees that the late addition of these self-evident facts in a case about defendants' alleged failures to change soiled bandages could not have unduly surprised defendants. Thus, the magistrate judge was correct to deem the late submission of the declaration to be harmless.

Second, defendants argue that summary judgment should not be denied as to defendant Ruff because the evidence shows that Ruff did not refuse to change a bandage soiled with feces. Defendants are correct about what the evidence shows. Rather than refusing to change a soiled bandage, the evidence, construed in plaintiff's favor, shows that Ruff refused to provide a clean bandage to plaintiff after he defecated in his original bandage, "took a shower to clean the feces off," and the "dressing came off in the wet environment." Baldhosky Decl. ¶ 10. Defendants are incorrect, however, as to their legal conclusion. Ruff's alleged refusal to provide plaintiff with a clean bandage—thereby ensuring that plaintiff's open sore would be unprotected for most of a day—is sufficient to state a deliberate indifference claim and defeat summary judgment.

Third, defendants argue that summary judgment should not be denied as to defendants Kaylor, Indendi, and Dunn. ECF No. 187 at 3-4. In the findings and recommendations, the magistrate judge concluded that defendants failed to demonstrate a prima facie entitlement to summary judgment in part because plaintiff alleged that Kaylor, Indendi, and Dunn refused to change his soiled bandages. ECF No. 179 at 12-13. Defendants contend that this conclusion is flawed because "the magistrate judge assumed, without evidence, that Plaintiff's bandages were soiled with feces," but "Plaintiff did not testify or submit any evidence to show that he informed Kaylor, Indendi, or Dunn that his bandages were soiled with fecal matter." ECF No. 187 at 3-4. (bolding and italics omitted). This argument is simply belied by the summary-judgment record.2 See, e.g., ECF No. 28 at 20-21 ("On or about November 13, 2009, Plaintiff suffered an unintended [bowel movement] and soiled his dressing and wound. Plaintiff reported the issue to Nurse[] Kaylor . . . and asked for a dressing change. The nurse[] refused to clean and dress the wound, telling Plaintiff to come back later."). Defendants' third argument is therefore without merit.

Fourth, defendants argue that no evidence supports the magistrate judge's finding that plaintiff suffered harm from any delay on the part of defendants in changing plaintiff's soiled bandages. Id. at 4-6. This argument likewise lacks merit. The magistrate judge proffered three bases to "to infer that defendants' alleged failure to promptly change plaintiff's soiled dressings caused the deterioration of plaintiff's condition, perhaps even including MRSA":

ECF No. 178 at 13. Defendants' arguments in opposition are unavailing and forget the standard with which we consider the evidence at summary judgment. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002) (stating that the evidence must be viewed "in the light most favorable to the nonmoving party" and "all justifiable inferences" must be drawn in favor of the nonmoving party").

In conclusion, the court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that:

IT IS SO ORDERED.