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Reberger v. Koehn

United States District Court, D. Nevada

January 23, 2017

LANCE REBERGER, Plaintiff,
v.
MICHAEL KOEHN et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. DISCUSSION

         On June 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.

(Id.)[1]

         On 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.)

         Before 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).

         A. Motion for Summary Judgment[2] (ECF No. 29)

         1. Legal Standard

         “The 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).

         The 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.

         2. Analysis

         In the 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.)

         In the 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 ...


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