United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court is defendant Dr. Joseph Hanson's (hereinafter "defendant") motion for summary judgment. (Doc. # 17). To date, pro se plaintiff Jeffery Edwards (hereinafter "plaintiff") has not responded.
This is a pro se civil rights action. Plaintiff was in the custody of the Nevada department of corrections and housed at High Desert State Prison (HDSP) from approximately June 22, 2012, through July 31, 2012, a period covering the time of the alleged mistreatment. Plaintiff claims that defendant failed to treat his infected wisdom tooth properly and that this failure caused plaintiff's mouth to lock up, requiring plaintiff to visit an oral surgeon outside of prison.
Beginning on or around June 24, 2012, plaintiff began making written requests ("kites") to HDSP's dental clinic to inform them of pain in his wisdom tooth. (Doc. # 17). On July 18, 2012, defendant examined plaintiff. Defendant observed that plaintiff's mouth was not swollen, had no limited opening, was not forming puss, and was not infected. On the same visit, plaintiff signed a written consent form for the extraction of his wisdom tooth, which spelled out the common risks of the surgery, and plaintiff's tooth was extracted. (Doc. # 17).
On July 23, 2012, plaintiff returned to the dental clinic with symptoms of a beginning post-operation infection and was treated by Dr. Sanders. Dr. Sanders prescribed antibiotics for plaintiff's infection. (Doc. # 17).
On July 31, 2012, plaintiff returned to the dental clinic with signs of severe swelling. The infection was not responding to the antibiotics. As a result, Dr. Hanson transferred plaintiff to University Medical Center ("UMC") for further evaluation and treatment.
On December 18, 2013, plaintiff filed his complaint pursuant to 42 U.S.C. § 1983. (Doc. # 6). Plaintiff filed an amended complaint on December 30, 2013. (Doc. # 7). Pursuant to a screening order, plaintiff has been permitted to proceed on one claim alleging deliberate indifference against defendant. (Doc. # 8). Defendant now moves for summary judgment.
II. Legal Standards
A. Summary judgment
Pursuant to Local Rule 7-2(d), an opposing party's failure to file a timely response to any motion constitutes the party's consent to the granting of the motion and is proper grounds for dismissal. LR 7-2(d). A court cannot, however, grant a summary judgment motion merely because it is unopposed, even where its local rules might permit it. Henry v. Gill Indus., Inc., 983 F.2d 943, 949-50 (9th Cir. 1993); see also Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (a district court cannot grant a motion for summary judgment based merely on the fact that the opposing party failed to file an opposition).
Even without an opposition, the court must apply standards consistent with Federal Rule of Civil Procedure 56, determining if the moving party's motion demonstrates that there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry, 983 F.2d at 950. See also Clarendon Am. Ins. Co. v. Jai Thai Enters., LLC, 625 F.Supp.2d 1099, 1103 (W.D. Wash. 2009).
The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). 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 applies a burden-shifting analysis. "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 ...