The opinion of the court was delivered by: Robert C. Jones United States District Judge
This case arises out of Defendants' alleged deliberate indifference to Plaintiff's medical needs in prison, in violation of the Eighth and Fourteenth Amendments. Plaintiff also alleges negligence under state law. Pending before the Court is the Magistrate Judge's ("MJ") Report and Recommendation ("R&R") (ECF No. 230) on Defendants' Motion for Summary Judgment (ECF No. 204). For the reasons given herein, the Court adopts the R&R in part and rejects it in part and grants the motion.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Rickey Egberto is incarcerated with the Nevada Department of Corrections ("NDOC"). (First Am. Compl. ¶ 17, ECF No. 33). Plaintiff, who alleges he has two herniated discs in his spine, has been given medication for the pain, but has been denied surgery. (Id.). Plaintiff alleges that the infirmary at Ely State Prison ("ESP"), where he is currently incarcerated, has a custom and practice of failing to properly diagnose, treat, and medicate inmates, and he argues that this constitutes deliberate indifference. (Id.). Plaintiff also alleges that two neo-Nazi gang members, against whom he testified, are incarcerated at ESP, counter to Plaintiff's "understanding" that they would be incarcerated elsewhere. (Id.). He alleges that he has received death threats from these inmates, and he argues that the failure to house them elsewhere constitutes deliberate indifference by NDOC. (Id.).
On December 22, 2006, Plaintiff sued NDOC in this Court on three causes of action: (1)--(2) substantive due process and equal protection violations under the Fourteenth Amendment and deliberate indifference violations under the Eighth and Fourteenth Amendments, via 42 U.S.C. § 1983; and (3) state law negligence. Plaintiff amended the complaint on July 17, 2007 to add the following Defendants: Glen Whorton, Howard Skolnik, Ted D'Amico, M.D., Robert Bannister, M.D., E.K. McDaniels, Adam Endel, Fritts Schlottman, and William Donat. The First Amended Complaint ("FAC") adds no new causes of action but consolidates the first two causes of action into one.
On November 3, 2009, the Court adopted the MJ's R&R (ECF No. 55), granting Plaintiff's Motion for Preliminary Injunction (ECF No. 35) in part; Defendants were ordered to follow Dr. Long's recommended course of treatment or send Plaintiff for another evaluation by an equivalent doctor and follow that doctor's recommended course of treatment, but Defendants were not required to transfer Plaintiff to another facility. (See Order 2--3, Nov. 2, 2009, ECF No. 124). On March 3, 2010, the MJ held a telephonic hearing and denied a Motion to Enforce Order (ECF No. 128), a Motion to Preclude Deputy AG from Blocking, Hindering, or Interfering (ECF No. 133), a Motion for Order to Show Cause (ECF No. 145), and Motion for Sanctions (ECF No. 146). The MJ denied those motions after reviewing a medical report that concluded nothing was wrong with Plaintiff's spine based upon an MRI scan, (see Hr'g Mar. 3, 2010, at 9:03 a.m.), records indicating that Plaintiff had refused medication at various times, (id. at 9:04 a.m.), a report by Dr. Kohn (phonetic) indicating that Drs. Kohn and Long were in agreement that Plaintiff was malingering in order to acquire access to narcotics and an unneeded cane, possibly for use as a weapon, (id. at 9:05 a.m.), and evidence that many people had seen Plaintiff walk without any limp or other difficulty and that he only walked with a limp when being seen by medical personnel, (id. at 9:06--07 a.m.). The MJ found that Defendants were in compliance with this Court's November 2, 2009 order. (See id. at 9:09--10 a.m.; Minute Order, Mar. 3, 2010, ECF No. 166).
Plaintiff filed a Notice of Appeal (ECF No. 170) and a Motion for Reconsideration of Magistrate Judge's Order (ECF No. 172), which this Court denied. (See Order, Aug. 24, 2010, ECF No. 210). Plaintiff also filed a Motion for Court Ordered Transportation to Independent Medical Exam (ECF No. 176) and a Motion for Court Ordered Medical Expert (ECF No. 179), both of which the MJ treated as motions to reconsider and denied. (See Mag. J. Order, May 6, 2010, ECF No. 191). Plaintiff filed two more motions, asking this Court to review the May 6, 2010 order of the MJ denying Motions Nos. 176 and 179. The Court denied those motions. (See Order, ECF No. 215). The Court of Appeals dismissed Plaintiff's appeal for failure to respond to one of its orders. In the meantime, Defendants had filed the present motion for summary judgment.
II. SUMMARY JUDGMENT STANDARDS
A court must grant summary judgment 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." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett,477 U.S. 317, 323--24 (1986). In determining summary judgment, a court uses a burden-shifting scheme:
When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.
C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323--24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159--60 (1970).
If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324.
At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the non-movant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely ...