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Ross v. Krueger

United States District Court, D. Nevada

March 31, 2015

AMY KRUEGER, et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is the Motion for Summary Judgment (ECF No. 82) filed by Defendants Greg Arms, Butch Brasky, Anthony Demeo, Danny Ellis, Scott Gutheridge, Gary Hollis, Amy Krueger, Richard Marshall, Nye County, Ricardo Ramerez, Terry Rising, Carina Skyles, Karyn Smith, Melissa Taylor, Shirley Trummell, Lorinda Wichman, Brian Young, and Jadey Zaragoza (collectively "Defendants") on June 20, 2014. Despite being granted two extensions of time pursuant to untimely requests, (Extension Orders, ECF Nos. 88 & 96), pro se Plaintiff Jesse Aron Ross ("Plaintiff") filed his untimely Response (ECF No. 97) on September 21, 2014. The next day, on September 22, 2014, Plaintiff refiled a copy of his Response as a Cross-Motion for Summary Judgment (ECF No. 98).[1] Defendants subsequently filed their Reply (ECF No. 100) on October 8, 2014.


According to the operable Second Amended Complaint ("SAC"), Plaintiff is an inmate at High Desert State Prison ("HDSP") after having been sentenced in state court on December 10, 2012. (SAC at 1, 8, ECF No. 72). From October 6, 2010 until the date of his sentencing, however, Plaintiff was a pre-trial detainee at Nye County Detention Center ("NCDC") and was housed at both NCDC's Pahrump facility ("NCDC Pahrump") and its Tonopah facility ("NCDC Tonopah"). ( Id. at 1-8). Plaintiff alleges that during his time at NCDC Defendants violated his civil rights by denying him medical, dental, and mental health treatment and by denying him access to the exercise yard. ( Id. at 8-9).

Specifically, Plaintiff alleges nine separate counts of violations to his civil rights. ( Id. at 10-26). In Counts I-VI, Plaintiff alleges deliberate indifference to his medical needs in violation of the Fourteenth Amendment. ( Id. at 10-23). In Count VII, Plaintiff alleges an equal protection violation based on the same conduct alleged in Counts I-VI. ( Id. at 24). In Count VIII, Plaintiff alleges a due process violation based on denied access to the exercise yard. ( Id. at 25). Finally, in Count IX, Plaintiff alleges that by failing to implement policies, customs, and practices that ensured detainees received timely medical treatment, Defendants violated the Fourteenth Amendment and the Due Process Clause. ( Id. at 26).


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 judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that 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. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations 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 satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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. P. 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 that are unsupported by factual data. 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 Celotex Corp., 477 U.S. at 324.

At summary judgment, 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 nonmovant 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 colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50.


A. Counts I-VI; Deliberate Indifference

Plaintiff's first six counts allege deliberate indifference on the part of Defendants for failing to provide necessary medical care. (SAC at 10-23, ECF No. 72).

Generally, a prisoner's deliberate indifference claims arise from the Eighth Amendment's safeguard against cruel and unusual punishment. Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187-88 (9th Cir. 2002). However, when an individual has not been convicted of a crime, but is instead a pre-trial detainee, his rights derive from the due process clause of the Fourteen Amendment rather than the Eighth Amendment. Id. (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)). The due process clause of the Fourteenth Amendment imposes, at a minimum, the same duty as the Eighth Amendment that "persons in custody have the established right to not have officials remain deliberately indifferent to their serious medical needs." Id. (citing Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996).

Deliberate indifference "may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison officials provided medical care." Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)). However, the deliberate indifference test is not an easy test for a plaintiff to satisfy. Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002); see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982) ("The Eighth Amendment is not a basis for broad prison reform. It requires neither that prisons be comfortable nor that they provide every amenity that one might find desirable. Rather, the Eighth Amendment proscribes the unnecessary and wanton infliction of pain....") (quotations omitted). The test for deliberate indifference contains two parts. "First, the plaintiff must 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." Jett, 439 F.3d at 1096 (quotations omitted). "Second, the plaintiff must show the defendant's response to the need was deliberately indifferent." Id. Such deliberate indifference is shown by proving (a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference. Id. However, "an inadvertent or negligent failure to provide adequate medical care' alone does not state a claim under ยง 1983." Id. (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)); see also Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) ("While poor medical treatment will at a certain point rise to the level of constitutional violation, mere malpractice, or even gross negligence, does not suffice.").

1. Count I - Dental Care for Abscessed Tooth

In support of his claim in Count I, Plaintiff alleges that on October 13, 2010, while being housed at NCDC Pahrump, he submitted a medical request based upon a severe toothache. (SAC at 10, ECF No. 72). Two weeks later on October 28, 2010, he was interviewed by a Nye County Health and Human Services employee about his dental complaint, but nothing came of this interview. ( Id. ). However, four months later on February 24, 2011, Plaintiff was receiving medical treatment for pneumonia when the doctor examining him diagnosed that his tooth had an abscessed root and prescribed him antibiotics. ( Id. at 10-11). Subsequently, Plaintiff received a full oral exam on March 15, 2011, after which his abscessed tooth was removed. ( Id. at 11).

Plaintiff contends that the five-month delay between the filing of his medical request and his receiving dental care constitutes deliberate indifference on the part of Defendants. ( Id. at 10-11). In their motion, Defendants point out that Plaintiff was interviewed by a healthcare employee in response to his request only two weeks after the request was filed. (MSJ 18:18-22, ECF No. 19; Oct. 13, 2010 Request Form, ECF No. 84-1). Defendants also assert-and Plaintiff does not dispute-that between his interview on October 28, 2010 and his examination on February 24, 2011, Plaintiff had several other medical appointments at which he failed to mention his dental issues. ( Id. 19:2-4). However, less than three weeks after the February 24, 2011 exam discovering the abscessed tooth, Plaintiff was provided a full oral exam at which his tooth was removed. ( Id. 18:22-25; Feb. 24, 2011 Doctor's Notes, ECF No. 84-3; Dental Claim Form, ECF No. 84-5).

Though the record does not show that Defendants acted with diligence in providing Plaintiff with medical care for his tooth, the Court finds that Plaintiff has failed to show sufficient evidence that Defendants acted with deliberate indifference. Defendants responded to Plaintiff's complaint by having his tooth examined two weeks after being notified of the complaint, and provided a full oral exam and removal of the tooth less than three weeks after the abscessed tooth was diagnosed. At most, the failure to properly diagnose the tooth abscess during the October 28, 2010 interview or to have a full oral exam conducted sooner than three weeks after the diagnoses amounts to mere negligence, not deliberate indifference. See Frost, 152 F.3d at 1130; see also Lewis v. Naku, 650 F.Supp.2d 1090, 1094 (E.D. Cal. 2009) ("The Court finds that the Defendant's failure to initially diagnose Petitioner with degenerative disc dysplasia during this medical visit was not deliberately indifferent and did not violate Plaintiff's constitutional rights."). Accordingly, Defendants are granted summary judgment on Count I.

2. Count II - Requests to See an Optometrist

In support of his claim in Count II, Plaintiff alleges that on March 12, 2011 he submitted a medical request to see an optometrist because he believed he needed glasses, but his request was denied on the grounds that he did not qualify for the service. (SAC at 12, ECF No. 72). He filed a grievance based on this denial on May 29, 2011, which was denied, and he resubmitted his request on June 12, 2011. ( Id. ). On June 30, 2011, his second request was also denied and Plaintiff was never examined by an eye doctor at NCDC. ( Id. at 13). ...

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