United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
15, 2016, the Court issued a screening order which deferred a
decision on Plaintiff's application to proceed in
forma pauperis for ninety (90) days to give the parties
an opportunity to settle their dispute. (ECF No. 9 at 6-7.)
In an earlier order, the Court acknowledged that Plaintiff
had three (3) strikes but found that Plaintiff had alleged to
be in imminent danger of serious physical injury in his
complaint. (ECF No. 3 at 2.) The Court found imminent danger
based on the following allegations:
Plaintiff alleges that he has the human immunodeficiency
virus (HIV) and that Dr. Koehn and Romeo Aranas are
preventing him from taking his HIV medications as prescribed.
Plaintiff has two HIV medications (Norvir and Invirase) which
must be taken with food every 12 hours. Plaintiff alleges
that beginning in September of 2014, the medication has been
administered by ESP nurses anywhere from 9½ hours to
16 hours apart. Due to the incorrect timing of his
medication, Plaintiff alleges that his T-cell count had
dropped 500 “points” in the past year, causing
him to be on the verge of developing AIDS and more
susceptible to other infections. He also alleges that not
taking his medication as prescribed makes it more likely that
the medication may become ineffective.
September 13, 2016, the parties engaged in mediation but did
not reach a settlement. (ECF No. 17.) Before the Court issued
a decision on the application to proceed in forma
pauperis, Defendants challenged the finding that
Plaintiff had satisfied the imminent physical danger
exception and argued that Plaintiff should be barred from
proceeding in forma pauperis pursuant to 28 U.S.C.
§ 1915(g) based on his three strikes status. (ECF No.
14.) The Court found that Defendants could challenge the
Court's earlier finding that Plaintiff was under imminent
danger of serious physical injury and granted Plaintiff an
opportunity to respond. (ECF No. 19 at 2.)
the briefing period ended and before the Court could address
Defendants' first challenge to Plaintiff's imminent
danger status, both Plaintiff and Defendants filed numerous
other motions, responses to those motions, and replies to
those motions. The following motions are now pending before
the Court: Defendants' motion for summary judgment (ECF
No. 29), Plaintiff's motion for discovery of his medical
records (ECF No. 45), Defendants' motion to strike one of
Plaintiff's supplements (ECF No. 47), Plaintiff's
motion to dismiss the motion for summary judgment (ECF No.
49), Plaintiff's motion for reconsideration to review
medical records for discovery (ECF No. 50), and
Defendants' motion to strike one of Plaintiff's
pleadings (ECF No. 59).
Motion for Summary Judgment (ECF No.
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). An issue is “genuine” if there
is a sufficient evidentiary basis on which a reasonable
fact-finder could find for the nonmoving party and a dispute
is “material” if it could affect the outcome of
the suit under the governing law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968)). In evaluating a summary judgment motion,
a court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 1986).
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies Rule 56's requirements, the burden
shifts to the party resisting the motion to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. The
nonmoving party “may not rely on denials in the
pleadings but must produce specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists, ” Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Orr v. Bank of Am., NT &
SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)). “The mere existence of a
scintilla of evidence in support of the plaintiff's
position will be insufficient.” Anderson, 477
U.S. at 252.
motion for summary judgment, Defendants argue that nothing in
the full prescribing information for both Invirase and
ritonavir, brand name Norvir, states that the drugs must be
taken every twelve (12) hours. (ECF No. 29 at 8-9.)
Defendants argue that the Invirase literature states that
Invirase should be administrated with ritonavir twice daily
within two (2) hours after a full meal. (Id. at 8.)
Defendants state that the ritonavir literature also states
that the drug must be administered twice daily with meals.
(Id. at 9.) Defendants attach the full prescribing
information for each drug as exhibits. (ECF No. 29-4, 29-5.)
Invirase prescribing literature, the drug manufacturer states
the following: “The standard recommended dose of
INVIRASE is 1000-mg twice daily . . . in combination with
ritonavir 100-mg twice daily . . . Ritonavir should be taken
at the same time as INVIRASE. INVIRASE and ritonavir should
be taken within 2 hours after a ...