text:
Every quarter we hear about Alcoa (NYSE:AA) kicking off earnings season, which gets under our skin because: 1) there is little read-through to other companies; 2) there still aren't very many companies reporting for another week after Alcoa's report; 3) Alcoa doesn't really even trade based on its earnings; and 4) Alcoa's earnings matter little to the overall market. For example, shares of Alcoa have gapped higher on earnings eight times during the month of April since 2000 and the S&P 500 has gone on to average a 1.53% gain by the time earnings season was over [which we view as Cisco's (NASDAQ:CSCO) earnings release]. The five times Alcoa has gapped lower, the S&P 500 averaged a 2.33% gain during the same period. So, if there is good news coming for some uptight know-it-all traders who get annoyed by talking heads on television that don't even know how to pronounce Stifel Nicolaus and hype up the importance of Alcoa's earnings release, it's that this might be the last earnings season we have to hear it.
You see, the only valid reason for focusing on Alcoa's earnings at the beginning of each quarter is that it is the first company to report earnings among companies included within the Dow Jones Industrial Average, but that is at risk of changing following the company's earnings release. It won't be the earnings or anything on the income statement that will have the most importance, but rather the balance sheet. The company's credit metrics are deteriorating and the company's net debt is expected to rise to $7.5 billion. This had led to expectations that Moody's will downgrade Alcoa's debt to junk status, making the company the only non-investment grade company included in the Dow Jones average and that, in turn, is expected to eventually lead to the stock's removal from the index.
Last quarter we had actually become bullish shares of Alcoa going into its earnings release for the first time in a couple of years. It wasn't that the supply issues were changing or the debt had improved, but the Fed had started pumping more money into the financial system than during the depths of the 2008/2009 recession, mostly through U.S. Treasury buying. However, U.S. Treasuries were falling in price, pushing interest rates higher, and signaling the market was expecting inflation. That was a positive for the metal companies and a sign that shares of Alcoa could be bottoming.
Since then, however, the U.S. dollar has rallied and nearly all metals have dropped in price, including aluminum. Plus, in recent weeks, U.S. Treasuries have rallied too. The signals the market was giving are gone, and that hasn't been favorable to Alcoa. That's a particularly bad sign since before the last earnings release, Moody's had placed the company under a credit review for a possible downgrade.
In the face of declining aluminum prices, the potential savior for the company is cost cuts, and that should help the bottom line improve over the $0.06 per share earned last quarter. Whether the company can beat estimates in the face of declining aluminum prices is a toss up, and the consensus estimate has come down in recent weeks to $0.10 per share. This is in-line with the Earnings Whisper ® number. Regardless, gaps higher on an earnings beat when aluminum prices are falling should be sold and that will be the trade objective after the news. That may be especially true this quarter in the face of a credit downgrade, which won't just put its multiple at risk if the company is removed from the Dow Jones Industrial Average, but it also means it will be harder for the company to cut costs and improve margins in the future. A continued decline in forward earnings estimates make the stock a value trap and to get to trough multiples, the stock would have to drop to a $3 handle using current estimates.
On the chart below, a move that holds above $9.00 to $9.20 would tell us we may be wrong, but ideally the stock will stay below $8.80 on a gap higher and there is also a very serious risk that a solid breakdown is in the cards. The stock has had two touches at the $8 level in a downward trend - a decline that has come with a similar trend in forward earnings estimates. A move below $8 would give us a technical target for a move just below $7 with $8 as the new resistance.
Click to enlarge
(Click to enlarge)
Alcoa is scheduled to report earnings after the market closes on Monday, April 8, 2013 with a conference call at 5:00 PM ET available here.
Disclosure: I have no positions in any stocks mentioned, but may initiate a short position in AA over the next 72 hours. I wrote this article myself, and it expresses my own opinions. I am not receiving compensation for it (other than from Seeking Alpha). I have no business relationship with any company whose stock is mentioned in this article.


text:
RealDave do you think others are as stupid as you? This is a simple question Dave, who controlled the House/Senate in 2007?<quoted text>
So, show me where there were 51 or more Democratic Senators in 2007 & 2008.
Reid was elected because the Independents didn't want more failed Republican leadership. Things pass the Senate by vote. Where were the 51 plus Senators to carry a simple majority vote?
Barack Obama, our next President
There are 1459053 comments on the Hampton Roads Daily Press story from Nov 5, 2008, titled Barack Obama, our next President. In it, Hampton Roads Daily Press reports that:"The road ahead will be long. Our climb will be steep," Obama cautioned. Young and charismatic but with little experience on the national level, Obama smashed through racial barriers and easily defeated ...
Join the discussion below, or Read more at Hampton Roads Daily Press.
United States
#867726 Mar 4, 2013
#867727 Mar 4, 2013
United States
#867728 Mar 4, 2013
nobama posts on topic of which he has no knowledge, funny in a way. nobama seems an expert on all topics :-)
Carol is back to fox-ism or is it fox-itis
"Often imitated"
Since: Jul 07
never duplicated
#867729 Mar 4, 2013
I get it...blaming someone else is ingrained in you liberals.
#867730 Mar 4, 2013
Are you the one that starts the Judgeit wars the funny looking dude in the hat obsesses about? All was quiet until you showed up.
#867731 Mar 4, 2013
You have sleazed right on to different points while skipping the ones I confronted you with. I guess when exposed as a BS'er, that's what a lib like you does.
You on the left have a nack for hypocrisy and obfuscation in order to avoid honest debate.
Here was the post you are trying to escape from:
Which was:
You closed with:
"confused would be those who think that an unpopular ideology and it's related unpopular 'policies' are what's best for the American "
Oh yeah? Who are the sellouts and who is confused?
"54% Think U.S. Heath Care System Likely to Worsen Over Next Couple Years"
http://www.rasmussenreports.com/public_conten ...
"53% of Americans Favor Repeal of Obamacare"
http://heritageaction.com/2012/06/53-of-ameri ...
"Thirty-four percent (34%) of Likely U.S. Voters say the country is heading in the right direction"
http://www.rasmussenreports.com/public_conten ...
United States
#867732 Mar 4, 2013
Grampy with a new name?
#867733 Mar 4, 2013
Remember: Sequestration was Obamas Idea
President Obama is a full partner with the Republicans in the latest episode of the manufactured disaster saga: sequestration.The idea was to make every popular constituency in the country scream and accept the inevitability of massive entitlement cuts. Its a goal shared by corporatists in both parties.
The Obama administration has been very skillful in framing itself as the good guy in the latest looming fiscal disaster, this time under the heading of sequestration. On Friday, across-the-board cuts of $85 billion are set to go into effect, wreaking havoc on most government operations. Social Security, Medicare, Medicaid, CHIP, the Childrens Health Insurance Program and whats left of welfare are not directly affected, but these so-called entitlement programs have, in fact, always been the primary targets of this cascade of manufactured crises. Disaster capitalism is manifesting itself as disaster governance, and President Obama is fully complicit in the corporate-imposed charade. Indeed, Obama is most culpable for infecting the nation with austerity fever.
It was Obama who swallowed whole the corporate argument, previously championed by Republicans, that the national debt was Crisis Number One and that entitlement programs were the root cause. From the moment in January of 2009 when Obama served notice that Social Security and all other entitlements would be put on the chopping block, he became the chief mover and shaker for so-called entitlement reform. He created the model for austerity, through his Simpson-Bowles deficit reduction commission. It was Simpson-Bowles that provided the basis for the massive cuts offered by President Obama in 2011.
"Often imitated"
Since: Jul 07
never duplicated
#867734 Mar 4, 2013
He's playing word games again. Ask him who the 2 independents caucused with.
#867735 Mar 4, 2013
Lesson on Your Social Security Card
Just in case some of you young whippersnappers (& some older ones) didn't know this. It's easy to check out if you don't believe it. Be sure and show it to your family and friends. They need a lit...tle history lesson on what's what and it doesn't matter whether you are Democrat or Republican. Facts are Facts.
Social Security Cards up until the 1980s expressly stated the number and card were not to be used for identification purposes. Since nearly everyone in the United States now has a number, it became convenient to use it anyway and the message, NOT FOR IDENTIFICATION, was removed.
Our Social Security
Franklin Roosevelt, a Democrat, introduced the Social Security (FICA) Program. He promised:
1) That participation in the Program would be
Completely voluntary,
No longer Voluntary
2) That the participants would only have to pay
1% of the first $1,400 of their annual income into the Program,
Now 7.65% on the first $90,000
3) That the money the participants elected to put into the Program would be deductible from their income for tax purposes each year,
No longer tax deductible
4) That the money the participants put into the independent 'Trust Fund' rather than into the general operating fund, and therefore, would only be used to fund the Social Security Retirement Program, and no other Government program, and,
Under Johnson the money was moved to The General Fund and Spent
5) That the annuity payments to the retirees would never be taxed as income.
Under Clinton & Gore Up to 85% of your Social Security can be Taxed
Since many of US have paid into FICA for years and are now receiving a Social Security check every month -- and then finding that we are getting taxed on 85% of the money We paid to the Federal government to 'put away'
-- you may be interested in the following:
Q: Which Political Party took Social Security from the independent 'Trust Fund' and put it into the general fund so that Congress could spend it?
A: It was Lyndon Johnson and the democratically controlled House and Senate.
Q: Which Political Party eliminated the income tax deduction for Social Security (FICA) withholding?
A: The Democratic Party.
Q: Which Political Party started taxing Social
Security annuities?
A: The Democratic Party, with Al Gore casting the 'tie-breaking' deciding vote as President of the Senate, while he was Vice President of the US
Q: Which Political Party decided to start giving annuity payments to immigrants?
A: Jimmy Carter and the Democratic Party. Immigrants moved into this country, and at age 65, began to receive Social Security payments! The Democratic Party gave these payments to them, even though they never paid a dime into it!
Then, after violating the original contract (FICA), the Democrats turn around and tell you that the Republicans want to take your Social Security away!
And the worst part about it is uninformed citizens believe it! If enough People receive this information, maybe a seed of awareness will be planted and maybe changes will evolve.
#867736 Mar 4, 2013
The Republicans are his partners, not his opponents.
Let me repeat: Sequestration was Obamas idea. So-called entitlement reform is Obama doctrine. Austerity was embedded in the Democratic Partys agenda under President Obama. More than any other individual, it was Barack Obama who engineered the current disaster scenario. These waves of austerity crises were not inevitable, but they are the inevitable result of President Obamas calculated statements and actions since Election Day 2008. The Republicans are his partners, not his opponents. The closest thing he has to an opposition at least on paper is the Congressional Progressive Caucus, whose two co-chairs introduced a bill that would turn the austerity juggernaut on its head. Its called the Balancing Act of 2013, and would replace all of the sequestration cuts with new revenues, and then add a $276 billion stimulus to the economy. Needless to say, the progressive bill will get nowhere, not just because of Republican opposition, but because the top Democrat, Barack Obama, wants to go down in history as the smart austerity president. Just as he said he wasnt opposed to wars, but only to dumb wars which is why he has built tens of thousands of the smartest drones and smartest bombs ever devised by man.
#867737 Mar 4, 2013
The guy is only one for four in political races, he and Mamie should be used to the criticism by now.
#867738 Mar 4, 2013
CANDIDATE OBAMA had nothing but HOPE, PRESIDENT OBAMA HAS NOTHING BUT DOOM AND GLOOM
#867739 Mar 4, 2013
kind of like not taking credit for voting in republicans that conservatives don't like after they start acting like republicans?
#867740 Mar 4, 2013
Why Isn't Closing 129 Chicago Public Schools National News?It's an obvious question, with an easy answer. Our nation's bipartisan political elite have decided to privatize public education. They know the only way they can execute this deeply unpopular policy is to do it on the down-low, with a minimum of coverage, and no mention of the p-word, especially of growing civic resistance to it.It's not news because school closings and school privatization, the end game of the bipartisan policies the Obama administration, Wall Street, the US Chamber of Commerce, a host of right wing foundations and deep pockets and hordes of politicians in both parties from the president down are pushing down the throats of communities across the country, are deeply unpopular. The American people, and especially the parents, teachers, grandparents, and other residents of poorer neighborhoods where closings and privatization are happening emphatically don't want these things.
Even the word describing their policy,privatization is so vastly unpopular that they've taken it out of circulation altogether. The best way, our leaders imagine, to contain and curtail resistance to their deeply unpopular policies is to avoid naming them for what they are, to keep them on the down low, to not report on their implementation, and certainly to not cover any civic resistance to them.
"Often imitated"
Since: Jul 07
never duplicated
#867742 Mar 4, 2013
He's not who I would have picked. That quote was the first sentence in sonic link.
#867743 Mar 4, 2013
Obamas Drone Wars are Evil, Says Black Church Group
President Obamas drone assassination policy is evil and should be condemned by all Christian clergy, said Rev. Anthony Evans, executive director of the Washington-based National Black Church Initiative. Black political figures such as Reverends Jesse Jackson Sr. and Al Sharpton and NAACP chief Ben Jealous have replaced their loyalty to God and serving the African American people with serving President Obama, who can do no wrong. Al Sharpton, said Rev. Evans, has become the White House gatekeeper, and you can buy the NAACP, these days.
#867745 Mar 4, 2013
By the time his term is over, President Obama and his Race To The Top program will have forced the closure and privatization of thousands of inner-city schools, a feat no white Republican or Democrat could have accomplished. But he'll only be president 4 more years. If we can stop this now, his successors won't be able to do this again. Can we? Will we?
#867746 Mar 4, 2013
The Expansion of Black American Misery under Barack Obamas Watch
Black folks are not only far worse off since 2009 under President Obamas economic and job creation policies Africans Americans are the only group that has taken a definitive step backwards since then. The main reason:lack of attention to employment in urban and rural geographic areas where Blacks reside.Obama has declined to even put forth the idea that low income Black people need targeted help.
Here are two facts that may surprise many people.
1. Black misery has been growing since 2009 under President Obamas economic and job creation policies. Black folks participation in the labor market has been steadily moving DOWNWARD during the Obama presidency since 2009 when he was first inaugurated.
2. ALL other major racial groups have moved up, albeit moderately, since 2009! Blacks are the only group that has taken a definitive step BACKWARDS since then. Why? This article will argue that it is because for the past 4 years, until last week, Obama has declined to even put forth the idea that "low income Black people need targeted help too!!! Needless to say, has not designed any job creation strategies or policies that would do something for the Blacks who supported him the most.
One indicator of this downward spiral for Blacks is the underemployment rate. Underemployment is measured by the extent to which people who usually work full time cannot find full time employment. These include people who are unemployed completely and people who work less than full time (i.e. less than 35 hours a week) due to their inability to find more employment. The underemployment rate does not include the millions of U.S. citizens (mostly Black) who are institutionalized in prisons.
#867748 Mar 4, 2013
New State of the Black family report disheartening,A new report on the state of the Black family finds that by almost every measure African-Americans families have declined since the 1960s a trend followed by families across all demographics.
The new report, released by the Urban Institute, revisits a 1965 report by the late New York Sen. Daniel Moynihan. In the original report, titled The Negro Family: The Case for National Action, Moynihan at the time the assistant labor secretary laid out a series of statistics on Black families.
Moynihan, in his reports conclusion declared,at the heart of the deterioration of the fabric of Negro society is the deterioration of the Negro family. It is the fundamental source of the weakness of the Negro community at the present time.
Not much has changed, according to the new reports findings.
An analysis of national data indicates that little progress has been made on the key issues Moynihan identified, wrote Gregory Acs, of the Urban Institute, in a statement released with the report.Further, many of the issues he identified for Black families are now prevalent among other families.
Three major factors were at the heart of the Moynihan report: the number of Black children who lived in homes without a father, the number of unmarried women giving birth and the number of Black women married and living with their spouse.
In 1950, 17 percent of Black children lived in a home with their mother but not their father. By 2010 that had increased to 50 percent. In 1965, eight percent of childbirths in the Black community occurred among unmarried women. In 2010 that figure was 41 percent. The number of Black women married and living with their spouse was recorded as 53 percent in 1950. By 2010, it had dropped to 25 percent.
Overall, Black children are three times more likely than white children to grow up in poverty 67 percent of African-American children grow up in poverty compared to 19 percent of white children.
The Urban Institutes report also added to the original scope of the Moynihan report to include the number of African Americans behind bars, employment data and educational attainment.
Perhaps the most alarming trend over the last 45 years has been the skyrocketing rate of incarceration for Black men.
Since the Moynihan report was released, another major social trend has put further strains on Black families the mass incarceration of Black men, Acs said.By 2010, about one out of every six Black men had spent some time in prison, compared with about 1 out of 33 white men.
A demographic breakdown by race was not available for 1965, but numbers beginning in 1974 showed disproportionate numbers of Black men being sent to prison. In 1974, it was nine percent of Black men compared to one percent of white men. By 2010, that had risen to 16 percent of Black men and three percent of white men.
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text: Colombo : Summit (Dubstep Mix) (iBreaks) Release date 09/11/11 by Colombo-Break published on 2011-10-06T09:54:38Z Colombo is these days one of the most successful artists in the whole breaks scene. After smashing every single breaks chart out there with his previous project BSD and Kultur + Colombo, he came right back to the arena with his absolutely stunning Exposed EP series, achieving many number ones with all three parts of the EP, including one of the biggest hits so far in 2011, Everybody, which sat at Beatport's number one for over 3 months. We are proud to introduce this 21 tracks mammoth of an album, which goes from the most elegant and well crafted two step, funky breaks and big beat to the most solid and booming tech funk, nu-jungle or dubstep.... Make sure you have some space in your music bag, cause this one is BIG! Release date: 9 Nov 11 Genre Breakbeat Comment by najeeb saifuddin wow.... 2011/12/12 19:26:34 +0000 Comment by najeeb saifuddin lovely......... 2011/12/12 19:25:22 +0000 Comment by EvilSound Bestial ^_^ 2011/11/12 20:01:52 +0000 Comment by EvilSound Pianazo!! 2011/11/12 20:01:25 +0000 Comment by CJ Rotten i thought dubstep is a dead end street. until now. this is phat!! 2011/10/29 02:09:21 +0000 Comment by The Blackss Rap no me gusta el dustep pero molan los sonidos 2011/10/06 15:20:25 +0000 Comment by Temazo You made dubstep good again. 2011/10/06 10:02:59 +0000


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Previous Challenge Entry (Level 1 – Beginner)
Topic: Leadership (03/14/05)
TITLE: Leadership (ii)
By Rick Shaffer
Leadership must be gauged by the life of Christ alone. Perfection isn�t
alterable. Observe the following points concerning His leadership.
L oyalty, a major factor in leadership, was exemplified in Him who said,
�My meat is to do the will of Him who sent me.� Our heart�s cry must be,
�Thy Will be done!�
E ndurance was projected by Him who endured mockery and humiliation
among many evils, including the cross. We must endure through these
A uthority was His, and men knew that �He spoke as one having authority.�
No one desires to follow a man who fails to exercise authority.
D etermination was evidenced when �He set His face to go to Jerusalem.�
We must establish goals and exercise unrelenting persistence in
accomplishing them.
E xample was perfected in Christ who Himself said, �I do always those
things which please the Father.� No honest man could condemn this
R eliability was personified in the Saviour�s word and in every facet of His
life. None were turned away who came to Him in need. God help us!
S ubmission in the life of Jesus is unparalleled for �He as a sheep before His
shearers was dumb. This is the hardest of lessons for proud man.
H oliness found its truest meaning in �The Lamb without spot or blemish.�
Being constantly under the spotlight demands that we live pure lives.
I nitiative began when �He took upon Himself the form of a man.� He was
willing to take the first step. We must initiate action as we lead.
P rayer was our Lord�s lifestyle. Communion with the Father was His
Supreme delight! Without this most important factor all else is worthless.
All of these must be prefaced with love!
C. R. Lord
The opinions expressed by authors may not necessarily reflect the opinion of FaithWriters.com.
If you died today, are you absolutely certain that you would go to heaven? You can be right now. CLICK HERE
JOIN US at FaithWriters for Free. Grow as a Writer and Spread the Gospel.


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Jonathan Lane Made It All the Way to Florida Before Discovering He Wouldn't Be Having Sex With Wheelchair-Bound 14-Year-Old
Jonathan Lane didn't even shave his neckbeard.
Hillsborough County Sheriff's Office
Bullhead City resident Jonathan Lane had this one in the works for more than a year -- he was going to have sex with someone he met on the Internet.
Finally, Lane got a plane ticket to Tampa, Florida, and landed at the airport early Sunday morning.
Lane, 33, was then arrested by the authorities, because his plans were to have sex with a 14-year-old girl who's confined to a wheelchair.
The Hillsborough County (Florida) Sheriff's Office says Lane was chatting the girl up on Yahoo messenger starting in June 2011, sending some dirty messages and "lewd pictures" of himself to her for quite some time.
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Lane eventually bought the plane tickets using the girl's grandmother's credit card, and made sure he "communicated his plans of travel and his plans of sexual activity" before he left, the Sheriff's Office says.
Thankfully, the girl's father found the messages at the last second.
The girl's father called police at the airport in Tampa, and detained him until HCSO deputies showed up.
The Sheriff's Office says Lane admitted everything, and "had full knowledge of the victim's age (14) and her physical condition."
Lane gets to hang out in the Hillsborough County jail for his charges of traveling to meet a minor, using a computer to solicit illegal acts, transmission of harmful material to a minor, and lewd or lascivious battery.
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text: Silver Hadden Silver + Levine is a full-service, labor-side employment law firm that has single-mindedly dedicated itself to "protecting the protectors" of society by consistently seeking expanded rights and enhanced benefits for law enforcement officers, firefighters and other public servants. Since 1971 the firm has won more groundbreaking cases and has more reported decisions than any other law firm dedicated to primarily representing public safety employee unions. The firm provides superior service, ethical representation and an innovative approach to the legal issues of its clients, which number over one hundred public employee Associations, including some of the largest police and fire unions in California.


text:
Only One Minute. To shoot the ball on longest possible path.
Either scripts and active content are not permitted to run or Adobe Flash Player version
13.0.0 or greater is not installed.
Left click to shoot the ball. Longer it travels on path, more points you gather. Bump the ball into sides of the stage to activate score multipliers.
Is this game not working? Any suggestions? Send your comments.


text:
PlayStation 4™ | Playstation Vita™ | PlayStation 3™ | Xbox One™ | Xbox 360™ | Nintendo Switch™ | Nintendo 3DS™ | PC & Mac™ | Other systems
UbisoftCompatible with Xbox One™ (XONE™)
Works on all systems sold worldwide.
1w Usually ships within 1 week. * Expected stock arrival 12/12/16 *
Price: US$ 59.99
|add to cart
|save for later
Click on a thumbnail to see more pictures for Steep
- RIDE YOUR WAY - Navigate the open world freely and create your own path as you decide how to explore your massive mountain playground
- LIVE UNFORGETTABLE MOMENTS WITH FRIENDS - Share thrilling, adrenaline-fueled experiences with other players
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descriptionRide a massive open world of the Alps and Alaska, where the powder is always fresh and the run never ends.Defy and master the world's most epic mountains on skis, wingsuit, snowboard, and in paraglide. Go solo or drop in side by side with other players. Record and share the most insane stunts ever captured, then challenge the world to beat your best tricks, ride your custom lines, and relive your most epic wipeouts.
The mountain is yours to explore. So strap in, suit up, and drop in.
further info
|Official Release Date
|Dec 02, 2016
|ESRB Teen
Titles rated T (Teen) have content that may be suitable for ages 13 and older. Titles in this category may contain violence, suggestive themes, crude humor, minimal blood, simulated gambling, and/or infrequent use of strong language.
|Item Code
useful links
Official Website
Steep Trailer: Announcement – E3 2016 (YouTube)
STEEP Trailer: 101 Overview in 2 Minutes (YouTube)
STEEP: GoPro Gameplay Trailer [US] (YouTube)
Steep Trailer - Gamescom 2016 [US] (YouTube)
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text:
Healthy Origins Phase 2® is an amazing, non-stimulant, all-natural nutritional ingredient that is derived from the white kidney bean. It is the first nutritional ingredient that has been clinically & scientifically proven to neutralize starch, found in in your favorite foods such as potatoes, breads, pasta. rice, corn and crackers.
During the digestive process, your body converts carbohydrates, found in starchy foods such as potatoes and pasta, into sugar. Your body does this by breaking-down the carbohydrate molecule with alpha amylase, an enzyme that is produced in the pancreas. These sugar calories are either burned off, through exercise, or stored as fat cells for future use. Unfortunately, inactivity means that these stored fat cells accumulate. The result is weight gain.
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The white kidney beans used to make Phase 2® are non-GMO (genetically modified) while the extraction process uses purified water - no solvents!! Virtually all impurities are removed during extraction process.
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Take 2 (two) capsules before any starch-rich meal along with 8 oz. water or as directed by a physician. Do not exceed 6 capsules daily.
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text:
Explore Az 10, Some People and more!
Cheer is much of a sport than any other sport out there
Cheer is a sport!!
For those who think cheer isn't a sport - exactly cheer-cheer-cheer
cheer officially became a sport last week!!! ICU finally got accepted to join sports accord!! now no one can say cheer isnt a sport... because the official governing body of sports says it is!!(:
Cheer is life, cheer is strength, cheer is waking up sore from yesterdays practice, cheer is working your butt off and still thinking it isnt good enough.
Cheer <3
Cheer leading is a sport
Cheerleading is more than a sport it's an attitude. #cheerquotes #cheerleading #cheer #cheerleader
THANK YOU!!!!! sick and tired of people saying, cheer leading isn't a sport. Really? I'd like to see you do a double!, I would like to see you lift a girl above your head and hold her there and throw her, with a smile on your face the whole time.


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Posted: Thursday, November 17, 2016 4:00 AM
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$5.19Buy an answer
SEC 480 Week 5 DQs
This pack of SEC 480 Week 5 Discussion Questions shows the solutions to the following problems:
How can experienced security professionals prepare themselves for challenges and opportunities that they have never encountered before? Why is it important for a security professional to know the particular target environment to which they are assigned extremely well? Do you think it is possible that experience with one type of environment can actually be a drawback for security professionals approaching another type of environment for the first time? Explain.
*** 480 **** 5 ***Attached: SEC 480 Week 5 DQs.zip


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Sterling silver and 14kt yellow gold ring adorn by .07ct full cut white diamond. Each ring is hand made and very unique. Ring can be also used as a wedding ring. Available in whole and half sizes from 5 - 13.
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|About Us
The Best Plays in China's Coal BoomBy Frank Curzio, editor, Small Stock Specialist
Friday, December 3, 2010
Back in August, I told you to buy China's "consolidators."
You see, the Chinese government has selected a handful of coal companies to buy small up mining assets at significant discounts to the market. The country calls these companies "consolidators." And they'll help China regulate a fragmented industry that claims thousands of deaths each year.
China is the largest consumer of coal in the world. It generates about 80% of its electricity from coal-fired plants. And power-generating capacity is expected to increase another 10% this year. The International Energy Agency says it will be at least 20 years before coal's share of electricity generation in China falls below 75%.
My best "consolidator" play on China's appetite for coal is Puda Coal (PUDA). The government gave this small company the right to purchase mining assets for 20 to 30 cents on the dollar.
The thing is, the stock is up over almost 100% since my recommendation in August. My Penny Stock Specialist subscribers are cashing in. But after Puda's breakout, I wouldn't suggest buying the stock at these levels.
Fortunately, several other "consolidators" are attractive at current prices.
For example, L&L Energy (LLEN) is trading at $11. That's about a 30% discount to its 52-week high. It's also buying small mines at cheap prices. It trades for less than eight times earnings. And revenue growth year over year is nearly 400%.
Another consolidator is SinoCoking Coal (SCOK). This under-$10 stock is down about 50% over the past four months after a few weak quarters. But the stock is starting to trend higher. SinoCoking is trading at just five times 2011 earnings. It's expected to grow those earnings by more than 40% in the same timeframe.
Yanzhou Coal Mining (YZC) is the conservative play in the "consolidator" space. It has a market cap of $13.7 billion and pays a small dividend. Shares are trading at their 52-week high. But with over $1.5 billion in cash, the company won't have to raise money to purchase coal-mining assets.
China's demand for coal is growing – and will for decades. These "consolidators" chosen by the Chinese government have a huge competitive advantage. And every company I mentioned has incredible earnings upside.
It's not too late to jump on this long-term trend.
Good investing,
Further Reading:
You can read more about China's coal boom and why these "consolidators" have such a huge advantage here: The Coming China Coal Boom.
Coal trend gaining momentum… Peabody Energy and Arch Coal surge to fresh highs.
Small-cap Russell 2000 index soars 7% over the past month... large-cap Dow Jones lags at 2%.
"Safe" treasury fund TLT resumes downtrend… falls 3% in two days.
Railroad giant Union Pacific breaks out to new all-time high.


text:
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Yes Bay Lodge has been owned by the Hack Family since 1977 when Art and Marlys Hack purchased the property and building and transformed it into one of the first Premier Fishing Lodge's in SE Alaska. The Lodge was operated by Art and Marlys for many years then, their sons Bill and Kevin took over the operation. Bill ran the Lodge from 1996 to 2005 while his brother Kevin focused his efforts in town running the air operation Promech. In 2005 Kevin and his family took over the Lodge operation and continue to this day. Most recently the day to day operation of the Lodge is handled by Kevin's Daughter Nicky and her Husband Ryan. With Nicky continuing to handle the Chef's duties at the Lodge and Ryan as the General Manager. Kevin still oversees the operation. The Hack family tradition continues.
"New in 2014 we started replacing our fleet of boats and we now have 5 aluminum, hardtop boats for your fishing comfort. They are custom built for us and the ultimate 2 person fishing machine.
Word from the Lodge they are comfortable, fast and plenty fishy!! Look for some more pictures of them in action later in the season - they are too busy out catching fish for new pictures! I have been promised I will have them before this goes live!"
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Weather Update
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UMHB hosting playoff semifinal
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Coldest Night in 2 Years Ahead!
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United States District Court, E.D. California
February 9, 2015
MICHAEL VINCENT CISNEROS, Plaintiff,v.DR. M. DHAM, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 45)
BARBARA A. McAULIFFE, Magistrate Judge.
I. Introduction
Plaintiff Michael Vincent Cisneros ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff's complaint, filed on August 5, 2011, against Defendant Neubarth for deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment.
On August 21, 2014, Defendant Neubarth filed a motion for summary judgment on the grounds that he did not violate Plaintiff's Eighth Amendment rights and that he is entitled to qualified immunity.[1] (ECF No. 45.) On September 22, 2014, Plaintiff filed his opposition. (ECF No. 49.) Following an extension of time, Defendant filed a reply on October 21, 2014, which included objections to Plaintiff's evidence. (ECF No. 54.) On October 29, 2014, Plaintiff filed a response to Defendant's objections.[2] (ECF No. 55.) The motion is deemed submitted. Local Rule 230(l).
II. Defendant's Motion for Summary Judgment
A. Legal Standard for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) summary judgment is appropriate when 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. Summary judgment must 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the court is to liberally construe the filings and motions of pro se litigants. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (internal quotations and citations omitted).
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. 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 denials of its 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. Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n.11.
In arriving at these Findings and Recommendations, the Court carefully reviewed and considered all arguments, points and authorities, declarations, exhibits, statements of undisputed facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of reference to an argument, document, paper, or objection is not to be construed to the effect that this Court did not consider the argument, document, paper, or objection. This Court thoroughly reviewed and considered the evidence it deemed admissible, material, and appropriate.
B. Defendant's Evidentiary Objections
On October 21, 2014, Defendant filed objections to Exhibits 1, 2 and 3 submitted by Plaintiff in his opposition. (ECF No. 54-2.) Plaintiff filed his response to the objections on October 29, 2014. (ECF No. 54.)
Exhibit 1
Exhibit 1 is the sworn declaration of Plaintiff's mother, Diana Collier. Defendant objects to this declaration as vague, ambiguous, conclusory, not relevant, lacking foundation, and containing impermissible hearsay in violation of Federal Rules of Evidence 402, 602, 802. Defendant further objects that Diana Collier's declaration claiming that Neurontin use caused damage to Plaintiff's eyes is not admissible under Federal Rule of Evidence 702 because competent expert testimony is required in order to establish medical causation between a particular event and the damage claimed by the Plaintiff.
Plaintiff counters that he did not submit the declaration of Diana Collier as expert testimony. Rather, Plaintiff states that he submitted the declaration to demonstrate how he obtained the pharmacy-listed side effects of gabapentin and to demonstrate that he had to obtain the side effects himself because no doctor would check the side effects.
Despite Plaintiff's assertions, there is no indication in the declaration of Diana Collier that she provided Plaintiff with a copy of any pharmacy-listed side effects of gabapentin or that it was the only means to obtain the side effects. (Pl's Ex. 1, ECF No. 49, p. 31.) It appears instead that Ms. Collier is providing testimony regarding the purported side effects of Neurontin, the diagnosis of Plaintiff following an eye exam and Plaintiff's vision status prior to taking Neurontin. (Id.)
Although Ms. Collier declares that she is a nurse, she has not been qualified as a medical expert pursuant to Federal Rule of Evidence 702. As such, Ms. Collier's non-expert testimony is limited to statements "(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Fed.R.Evid. 701. Therefore, she may not offer medical testimony regarding Plaintiff's vision status, diagnosis or medication side effects. She also may not provide testimony regarding causation. "[G]enerally plaintiff must prove causation by expert medical testimony except where there is an obvious causal relationship-one where injuries are immediate and direct." Walker v. Contra Costa County, 2006 WL 3371438 at * 9 (N.D. Cal. 2006), quoting In re Baycol Products Litigation, 321 F.Supp.2d 1118, 1125 (D. Minn. 2004) (citation omitted) (internal quotation omitted).
Defendant's objections to Ms. Collier's declaration on the grounds that she is not a medical expert pursuant to Federal Rule of Evidence 702 are SUSTAINED.
Exhibit 2
Exhibit 2 appears to be internet printouts of the warnings, precautions and side effects of Gabapentin and Neurontin. Exhibit 2 also includes information from the Food and Drug Administration ("FDA"), a federal government agency. Defendant does not object to the FDA documents. Accordingly, the Court's ruling is limited to the internet printouts regarding the side effects of Neurontin and Gabapentin, Plaintiff's Exhibit 2, ECF No. 49, pp. 34-41.
Defendant objects that the internet documents lack foundation and authentication, and cannot be substituted for expert testimony that is required in order to establish medical causation between a particular event and the damage claimed by the Plaintiff. Plaintiff counters that his mother, a registered nurse, obtained the listed side effects of Gabapentin and sent them to him.
Defendant's objections that the documents printed from the internet comprising Exhibit 2 lack foundation and authentication are SUSTAINED. Plaintiff has failed to produce evidence that these documents are what Plaintiff claims them to be and he cannot lay a foundation for records composed by third parties because he lacks personal knowledge regarding their contents. Fed.R.Evid. 602, 902. Plaintiff does not submit the testimony of a witness with knowledge of the documents. Fed.R.Evid. 901. Further, Defendant's objection that Plaintiff cannot substitute these documents in place of expert testimony regarding medical causation is SUSTAINED. See Walker, 2006 WL 3371438 at *9; Domingo v. T.K., 289 F.3d 600, 607 (9th Cir. 2001) (competent expert testimony is required to establish medical causation between a particular event and any injury); Scott v. MTA Keller, 2010 WL 3635728, *6 (E.D. Cal. Sept. 14, 2010); Cf. Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir. 1988).
Exhibit 3
Exhibit 3 is comprised of photos of Plaintiff's mother and father. Defendant objects that these documents are not relevant and they cannot be substituted for competent expert testimony to establish medical causation. Plaintiff responds that the pictures of his parents are meant to show that Plaintiff does not "suffer from a genetic eye disorder." (ECF No. 55, p. 1.)
The photos of Plaintiff's mother and father are not relevant to the claim of deliberate indifference to serious medical needs. Fed.R.Evid. 401. Further, the photos cannot be used to demonstrate that Plaintiff does not have a genetic eye disorder. Plaintiff is not a qualified medical expert able to testify regarding the presence or absence of genetic eye disorders. Fed.R.Evid. 702. Defendant's objections to Exhibit 3 are SUSTAINED.
C. Plaintiff's Evidentiary Objections
Plaintiff objects to Defendant's Exhibit C, which is Mosby's Medical Drug Reference regarding gabapentin. (Ex. C to Neubarth Dec.) Plaintiff contends that the edition of Mosby's Medical Drug Reference submitted by Defendant Neubarth is not the edition used while working at CDCR. Plaintiff objects that the cited evidence lacks foundation and is not the relevant edition.
Defendant admits that Exhibit C is a copy of pages from another edition of Mosby's Medical Drug Reference. (ECF No. 49, Pl's Ex. 10, p. 99.) There is no indication that the edition relied upon by Defendant Neubarth was substantially the same as the exhibit supplied. Accordingly, Plaintiff's objections to Exhibit C are SUSTAINED.
D. Summary of Relevant Allegations in Plaintiff's Complaint
Plaintiff arrived at California State Prison, Corcoran ("Corcoran") on August 26, 2009. During intake, he did not have any documented visual problems, but he had back problems.
On October 14, 2009, Dr. McCabe prescribed Gabapentin for Plaintiff's back pain. Plaintiff immediately started to experience blurred vision. On October 30, 2009, he submitted a Medical Request Form complaining of vision problems.
On November 3, 2009, Nurse Barrera provided Plaintiff with eye drops for chronic dry eyes.
On November 19, 2009, Plaintiff submitted another Medical Request form complaining of vision problems.
On November 23, 2009, Nurse Barrera referred Plaintiff for follow up. His eye acuity was documented at 25/50 right eye and 20/70 left eye.
On November 25, 2009, Plaintiff saw Dr. Dham and expressed concerns that his vision problems could be due to medications. Plaintiff indicated that if his medication had side effects of blurred vision, then he would like to change medications. Dr. Dham refused to check the side effects of his medications and assured Plaintiff it was old age. Dr. Dham referred Plaintiff to optometry.
On December 6, 2009, Plaintiff saw Dr. Bondoc and expressed concerns that his vision problems could be due to his medications. Plaintiff asked to switch pain pills if blurred vision was a side effect of Gabapentin. Dr. Bondoc refused to check or switch his medications, suggesting it was old age. Dr. Neubarth signed off on this as well on January 6, 2010.
On December 14, 2009, Plaintiff's Gabapentin was refilled and the dosage increased by Dr. Neubarth. At this visit, Plaintiff expressed concerns that his vision problems were caused by his medications. Plaintiff requested to switch pain pills because the blurred vision started right after taking Gabapentin. Dr. Neubarth failed to check the medication for known side effects and refused to change the medication.
On January 19, 2009, Plaintiff was seen by optometry and prescribed glasses for blurred vision/myopia.
On February 23, 2010, Plaintiff submitted another medical request complaining that he was losing his vision and it was worsening.
On February 24, 2010, Plaintiff submitted a medical appeal stating that he was losing his vision and that maybe his medications were affecting his vision. Plaintiff asked to switch pain pills if vision loss was a symptom.
On March 1, 2010, Dr. Neubarth continued Plaintiff's Gabapentin. Plaintiff expressed his concerns that his medication could be the cause of blurred vision. Plaintiff requested to switch pain pills.
Plaintiff was not taken off of Gabapentin until April 28, 2010. The person reviewing Plaintiff's appeal took Plaintiff off of Neurontin because of his bipolar disorder and fear of the medication. Plaintiff's prescription had expired and was not renewed. (ECF No. 1, Ex. 16.)
Plaintiff alleges that prison policy at Corcoran has changed and doctors are not supposed to prescribe Gabapentin for back pain.
E. Undisputed Material Facts ("UMF")[3]
1. Plaintiff is a state inmate incarcerated at Corcoran, where the alleged events giving rise to this lawsuit arose.
2. Dr. Neubarth is a medical doctor licensed in the State of California. He was employed as a Physician and Surgeon with the California Department of Corrections and Rehabilitation ("CDCR") at Corcoran during the time period relevant to this lawsuit. (Neubarth Dec. ¶ 1.)
3. As a Physician and Surgeon at Corcoran, Dr. Neubarth's work responsibilities included, but were not limited to, providing medical care to inmates, reviewing inmate appeals as necessary, and participating in physician review committees to discuss inmate patient cases and future treatment plans. (Neubarth Dec. ¶ 2.)
4. Dr. Neubarth has reviewed portions of the Unit Health Record ("UHR") of Plaintiff during the time period relevant to this action, and he is familiar with the medical care Plaintiff received at Corcoran. (Neubarth Dec. ¶ 3.)
5. Dr. McCabe prescribed gabapentin to Plaintiff on or about October 14, 2009, for pain relief. (Neubarth Dec. ¶ 4.)
6. Dr. Neubarth's review of Plaintiff's UHR shows that he saw Plaintiff on or about December 14, 2009, and March 1, 2010, related to the medication gabapentin. (Neubarth Dec. ¶ 5.)
7. The notes for Plaintiff's December 14, 2009 visit contain no documentation that Plaintiff was complaining of blurred vision. (Neubarth Dec. ¶ 6.)
8. On January 7, 2010, due to Plaintiff's complaints of pain, Dr. Neubarth prescribed Tylenol. (Neubarth Dec. ¶ 7.)
Plaintiff denies this statement of fact, arguing that Defendant Neubarth has a history of stamping papers that he had nothing to do with and the supporting exhibit does not contain Defendant Neubarth's handwriting. Plaintiff has not raised a genuine dispute of material fact. Plaintiff is not a handwriting expert and his contentions regarding Defendant Neubarth's stamping practices are mere speculation. The supporting exhibit contains both a signature and a stamp from Defendant Neubarth. (ECF No. 45-3, p. 10, Ex. A to Neubarth Dec.) Defendant Neubarth also declares under penalty of perjury that he prescribed the Tylenol.
9. Dr. Neubarth increased the dosage of gabapentin for Plaintiff on or about March 1, 2010. The notes for this visit did not record any complaint of blurred vision. (Neubarth Dec. ¶ 8.)
10. Plaintiff filed an inmate appeal in February, 2010, demanding that he be provided with narcotics instead of gabapentin. Plaintiff stated in this appeal that he was following the necessary steps to sue CDCR for monetary compensation. At the first level of appeal, handled by medical care providers other than Dr. Neubarth, it was noted that Plaintiff had a history of bipolar disorder, and that his gabapentin expired in April 2010, and would not be renewed. (Neubarth Dec. ¶ 9.)
Plaintiff denies that he was demanding narcotics; however, the interviewer's notes expressly state, "PT wants Narcotics in place of Neurontin...." (ECF No. 45-3, p. 20, Ex. B to Neubarth Dec.) 11. As a medical doctor, since Dr. Neubarth first started prescribing gabapentin over 10 years ago, it has been his custom and practice to regularly review the side effects of gabapentin. (Neubarth Dec. ¶ 11.)
Although Plaintiff disputes this fact, he has not presented contradictory evidence regarding Defendant Neubarth's custom or practice to raise a genuine dispute.
12. Dr. Neubarth has regularly utilized Mosby's Medical Drug Reference to research gabapentin. (Neubarth Dec. ¶ 11.)
13. The FDA-approved documents regarding a medication's side effects include conditions that are associated with the use of the medication, and they generally will include almost every potential side effect. Based on Dr. Neubarth's medical training and experience and review of FDA-approved documentation, myopia is not a side effect of gabapentin. (Neubarth Dec. ¶ 12.)
Defendant Neubarth does not provide a copy of the FDA-approved documentation. However, Plaintiff's Exhibit 2 is a copy of the FDA Adverse Event Reporting System for gabapentin. (ECF No. 49, p. 42, Pl's Ex. 2.) There is no express reference to myopia in the FDA document, and Plaintiff has not provided any expert testimony indicating that myopia is a side effect of, or caused by, gabapentin. Further, based on Defendant Neubarth's training and experience, "no drug has ever been proven to cause myopia." (ECF No. 54-1, Neubarth Supp. Dec. at ¶ 5.)
14. Dr. Neubarth understands that Plaintiff claims in this lawsuit that, his brief use of gabapentin for several months caused him to suffer visions problems, and he was later diagnosed with myopia. There are many causes of blurred vision, and myopia is one of them; however, myopia is a permanent condition. (Neubarth ¶ 13.)
15. While gabapentin may cause temporary blurred vision lasting a few hours, gabapentin does not cause myopia or any other long-term vision problems. (Neubarth Dec. ¶ 14.)
Plaintiff argues that evidence from the FDA identifies a number of side effects from gabapentin, including vision blurred, visual impairment and visual acuity reduced. While the FDA document does identify these vision issues, it does not identify myopia or provide evidence regarding the permanence of any vision problem. (ECF No. 49, p. 46, Pl's Ex. 2.)
16. Based on Dr. Neubarth's medical training and experience, it is common for patients who are in their twenties, similar to Plaintiff, to first report vision problems requiring corrective lens. Dr. Neubarth's review of Plaintiff's UHR indicates that Plaintiff eventually received glasses to correct very mild myopia. (Neubarth Dec. ¶ 15.)
17. Based on Dr. Neubarth's medical training and experience, it is his expert medical opinion that Plaintiff's brief use of gabapentin is not medically likely to cause the type of vision issues claimed by Plaintiff in this lawsuit, and that gabapentin did not cause myopia or cause Plaintiff to have to eventually receive corrective lens to correct his very mild myopia. (Neubarth Dec. ¶ 16.)
Although Plaintiff attempts to raise a dispute by asserting that gabapentin caused his loss in visual acuity, he is not a medical expert qualified to testify regarding causation. Walker, 2006 WL 3371438 at *9; Domingo, 289 F.3d at 607. Further, there is no evidence presented that myopia is caused by gabapentin.
18. Dr. Neubarth's determination of whether gabapentin was medically indicated for Plaintiff was made following examinations of Plaintiff, evaluation of objective findings, and review of Plaintiff's UHR, and based on Dr. Neubarth's medical training and expertise. (Neubarth Dec. ¶ 17.)
Plaintiff attempts to raise a dispute by arguing that gabapentin was not approved by the FDA for back pain and it was against CDCR policy to prescribe gabapentin for off-label use. Plaintiff has not presented competent, admissible evidence demonstrating that the FDA prohibited the prescription of gabapentin for off-label use or that CDCR policies forbade the practice in total at the time of the events in this action. In fact, Plaintiff's own evidence and statements demonstrate that the FDA noted off-label use of gabapentin and that CDCR policies permitted off-label use of prescription medications based on documented evidence of need. (ECF No. 49, pp. 5-6, Pl's Opp'n; p. 43, Pl's Ex. 2.) Plaintiff cites Smith v. Adam, 2013 WL 1283478, *2-3 (N.D. Cal. Mar. 26, 2013), which discussed evidence that gabapentin was not truly effective for most cases of neuropathy and was currently only approved for adjunctive therapy for seizures and post-herpetic neuralgia. The evidence was supported by reference to a medical article published in May 2010 discussing medical studies on the off-label use of gabapentin, which concluded that off-label uses for neuropathic pain and migraine symptoms provided questionable benefit and could increase the potential for harmful side effects. Id. at 3. The evidence also indicated that CDCR's practice was to not prescribe medication for off-label use unless there was documented evidence based on need. Id. at 3. Plaintiff has not raised a genuine dispute of material fact that CDCR precluded the off-label use of gabapentin in late 2009 and early 2010 or that Defendant Neubarth was aware of any medical research in December 2009 and March 2010 that failed to support its off-label use for pain.
Plaintiff also asserts that the manufacturer of gabapentin was sued and fined for illegally promoting gabapentin for off-label use of pain treatment without scientific evidence. To support this assertion, Plaintiff cites the declaration of a CDCR Chief Medical Officer, which was relied on in Ramirez v. Swingle, 2012 WL 5828549, *8 (E.D. Cal. Nov. 15, 2012) (findings and recommendations regarding motion for summary judgment in section 1983 action alleging deliberate indifference). The referenced declaration, rendered by the defendant in that action, refers to the manufacturer's fine for promoting off-label use, but does not provide direct evidence of the fine or suit and suggests that these events may have occurred after Plaintiff stopped using gabapentin. Id. at 8, 19. More importantly, Plaintiff has not established that Defendant Neubarth knew that off-label use of gabapentin was not medically indicated for Plaintiff's condition at the time he prescribed it in December 2009 and March 2010.
19. Based on Dr. Neubarth's medical training and expertise, it is his expert medical opinion that Plaintiff received appropriate medical care within the standard of care. (Neubarth Dec. ¶ 19.)
F. Plaintiff's Separate Statement of Undisputed Facts ("PUF")[4]
1. There were no visual problems noted on Plaintiff's medical history at Duel Vocational Institution on November 25, 2008, or on his Corcoran intake evaluation on August 26, 2009. (ECF No. 49, Pl's Ex. 7.)
2. Plaintiff was seen by Dr. McCabe and was prescribed gabapentin for back pain. (ECF No. 49, Pl's Ex. 7.)
3. On October 30, 2009, Plaintiff submitted a medical request form stating, "I get blurry vision alot these days." (ECF No. 49, Pl's Ex. 12, p. 101.)
4. On November 3, 2009, Plaintiff was seen for chronic dry eyes. (ECF No. 49, Pl's Ex. 13, p. 102.)
5. On November 19, 2009, Plaintiff submitted another medical request form stating, "I'm losing my far sight of vision everything is blurry I use to have perfect." (ECF No. 49, Pl's Ex. 13a, p. 103.)
6. On November 23, 2009, Plaintiff was seen by a nurse concerning vision issues. Plaintiff's visual acuity level was documented at 20/50 in his right eye and 20/70 in his left eye. Plaintiff was referred for follow up. (ECF No. 49, Pl's Ex. 25, p. 117.)
7. On November 23, 2009, Plaintiff was seen by Dr. Dham for his vision. (ECF No. 49, Pl's Ex. 26.)
8. On December 4, 2009, Plaintiff was seen by Nurse Ceballos. Nurse Ceballos noted on the form "Also c/o vision problems." (ECF No. 49, Pl's Ex. 14, p. 104.)
9. On December 6, 2009, Plaintiff was seen by Dr. Bondoc for vision problems. (ECF No. 49, Pl's Ex. 7.)
10. On December 14, 2009, Plaintiff was seen by Dr. Neubarth, who re-prescribed gabapentin twice a day and discontinued his eye drops. (ECF No. 49, Pl's Ex. 11, p. 100.) Plaintiff's file was accessible to Dr. Neubarth. (ECF No. 49, Pl's Ex. 4, p. 52.)
11. On January 6, 2010, Defendant signed Dr. Bondoc's December 8, 2009 request for optometry, which was denied. (ECF No. 49, Pl's Ex. 16, p. 106.)
12. On January 19, 2010, Plaintiff was prescribed glasses. (ECF No. 49, Pl's Ex. 17, p. 107.)
13. Dr. Neubarth admits that myopia is a form of blurred vision. (ECF No. 49, Pl's Ex. 4, p. 53.)
14. On January 20, 2010, Dr. Neubarth signed off on Plaintiff's optometry services. (ECF No. 49, Pl's Ex. 17, p. 107.)
15. On February 23, 2010, Plaintiff put in another medical request saying, "I'm progressively loosing [sic] my vision, it[]s getting worse and worse... I need to be bumped up on the doctor line cause it[]s serious." (ECF No. 49, Pl's Ex. 15, p. 105.)
16. On February 24, 2010, Plaintiff put in a medical appeal saying, "I'm progressively loosing [sic] my vision... maybe my medications are affecting my vision." Plaintiff requested to switch pain pills if vision loss is a symptom of Neurontin and to find out why he was "going blind." Plaintiff stated, "I'm not over exaggerating I'm loosing [sic] my vision, And I swear I will sue every one if it can be prevented and you (prison) are ignoring it." (ECF No. 49, Pl's Ex. 18, p. 108.)
17. On March 1, 2010, Plaintiff saw Dr. Neubarth, who noted an appeal. (ECF No. 49, Pl's Ex. 19, p. 109.)
G. Discussion
1. Eighth Amendment - Deliberate Indifference to Serious Medical Needs
A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment in violation of the Eighth Amendment unless the mistreatment rises to the level of "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) "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, '" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096. A defendant does not act in a deliberately indifferent manner unless the defendant "knows of and disregards an excessive risk to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "Deliberate indifference is a high legal standard, " Simmons v. Navajo County Ariz., 609 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was "a purposeful act or failure to respond to a prisoner's pain or possible medical need" and the indifference caused harm, Jett, 439 F.3d at 1096.
In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere indifference, ' negligence, ' or medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 105-06. "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner's mere disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).
Defendant Neubarth presents undisputed evidence that Dr. McCabe prescribed gabapentin for Plaintiff in October 2009. (UMF 5.) Thereafter, Defendant Neubarth continued Plaintiff's gabapentin in December 2009, and increased the dosage in March 2010. During these visits, there are no noted complaints by Plaintiff of any of blurred vision. (UMF 5, 6, 9.)
Defendant Neubarth also presents undisputed expert testimony that Plaintiff's diagnosed myopia was not caused by gabapentin, the side effects of gabapentin do not include myopia and Plaintiff's brief use of gabapentin was not medically likely to have caused Plaintiff's myopia. (UMF 13, 15, 17.) Based on the undisputed facts, Defendant Neubarth has established that his actions in prescribing gabapentin did not result in harm to Plaintiff. Jett, 439 F.3d at 1096. Defendant Neubarth has met his initial responsibility to demonstrate that he is entitled to summary judgment on Plaintiff's Eighth Amendment claim. The burden therefore shifts to Plaintiff to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co., 475 U.S. at 586.
In his opposition, Plaintiff first challenges Defendant Neubarth's credibility. However, in ruling on a motion for summary judgment, the court does not make credibility determinations. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).
Second, Plaintiff argues that Defendant Neubarth violated CDCR policy in prescribing gabapentin for an off-label use. Despite this argument, Plaintiff has not presented competent, admissible evidence demonstrating that CDCR policies at the time precluded physicians from prescribing medications for off-label use. Plaintiff's own evidence demonstrates that CDCR policies permitted prescription of medications for off-label use based on expert medical judgment. (ECF No. 49, Pl's Opp'n, pp. 5-6.) Plaintiff has not raised a genuine dispute that Defendant Neubarth violated CDCR policy by prescribing gabapentin for an off-label use.
Plaintiff also attempts to raise a dispute by arguing that gabapentin was not approved by the FDA for back pain and the manufacturer of gabapentin was sued and fined for illegally promoting gabapentin for off-label use of pain treatment without scientific evidence. However, Plaintiff does not provide direct evidence of such suit or fine, he does not indicate that these purported events occurred while he was prescribed and taking gabapentin in 2009 and 2010, and he does not establish that Defendant Neubarth knew of such events while prescribing gabapentin for Plaintiff in 2009 and 2010. (ECF No. 49, Pl's Opp'n, pp. 5-6.)
Third, Plaintiff argues that Defendant Neubarth knew of Plaintiff's loss of visual acuity. Plaintiff has presented evidence that Defendant Neubarth signed off on various requests for optometry services for Plaintiff. (PUF 11, 14.) Plaintiff also has presented his own sworn statement that he told Defendant Neubarth about his suspicions that gabapentin was causing blurred vision. (ECF No. 49, p. 21.) Defendant Neubarth's knowledge of Plaintiff's vision issues, however, does not raise a genuine dispute of material fact because, as discussed below, there is no evidence that gabapentin caused Plaintiff's myopia. Even if Defendant Neubarth disregarded Plaintiff's complaints of blurred vision, such indifference amounts, at most, to negligence, which does not support an Eighth Amendment claim. Broughton, 622 F.2d at 460 (negligence); Wood, 900 F.2d at 1334 (gross negligence).
Finally, Plaintiff argues that gabapentin caused him permanent loss in visual acuity. Plaintiff believes that the correlation between him experiencing a sudden onset of blurred vision immediately after taking gabapentin, the blurred vision worsening after Defendant Neubarth increased the dose of gabapentin, and the progressive loss of vision stopping after Plaintiff stopped taking gabapentin proves that gabapentin was the cause of the permanent loss of visual acuity that Plaintiff suffered. (ECF No. 49, pp. 11-12.) Despite this belief, Plaintiff has not presented any competent testimony from a medical expert to demonstrate that gabapentin caused his diagnosed myopia and need for glasses. Walker, 2006 WL 3371438 at *9; Domingo, 289 F.3d at 607. In contrast, Defendant Neubarth has presented undisputed expert testimony that Plaintiff's diagnosed myopia was not caused by gabapentin, Plaintiff's brief use of gabapentin was not medically likely to have caused Plaintiff's myopia and no drug has ever been proven to cause myopia. (UMF 15, 17; ECF No. 54-1, Neubarth Supp. Dec. ¶ 5.) Absent testimony from a medical expert, Plaintiff has failed to raise a genuine issue of material fact that he sustained any harm as a result of the use of gabapentin. Jett, 439 F.3d at 1096
To the extent Plaintiff believes he should have been prescribed some other approved pain medication instead of gabapentin, this does not amount to a constitutional violation. At best, this is a mere disagreement between Plaintiff and Defendant Neubarth regarding the prescribed course of treatment for Plaintiff, which does not support a claim of deliberate indifference. Sanchez, 891 F.2d at 242.
The Court therefore finds that summary judgment should be entered in favor of Defendant Neubarth.
2. Qualified Immunity
Based on the Court's finding that Defendant Neubarth is entitled to summary judgment on Plaintiff's Eighth Amendment claim for deliberate indifference to serious medical needs, it is unnecessary to address the issue of qualified immunity.
III. Conclusion and Recommendation
For the reasons discussed above, it is HEREBY RECOMMENDED that:
1. Defendant's motion for summary judgment, filed on August 21, 2014, be GRANTED; and
2. Judgment be entered in favor of Defendant Neubarth.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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