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Kelley v. Gedney

United States District Court, D. Nevada

June 5, 2017

JAMES C. KELLEY, Plaintiff,
v.
DR. KAREN GEDNEY, et al, Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4.

         Before the court is defendant John Peery's Motion for Summary Judgment. (ECF Nos. 33, 34.) Plaintiff indicated that Peery is not the proper defendant in this action. (ECF No. 35.)

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (PL's Compl., ECF No. 4.) The events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). (Id.)

         Plaintiff was allowed to proceed on Eighth Amendment claims of deliberate indifference to his serious medical needs of an umbilical hernia and hepatitis C. (See Screening Order, ECF No. 3.) He alleges that Dr. Karen Gedney refused to allow him to have hernia repair surgery and refused to treat his hepatitis C. (ECF No. 4.) He further claims that NNCC's nursing director denied his grievances that advised of his complaints and the pain he was suffering, and failed to authorize proper treatment. Finally, he avers that the grievance coordinator, Shannon Moyle, improperly responded to his grievances and in any event failed to rectify the situation.

         At issue in this motion is whether Plaintiff served the correct nursing director. The complaint lists the defendant as "Dir. of Nursing John Peery" in the caption as well as the list of defendants. (ECF No. 4 at 1, 2.) The body of the complaint describes the defendant as "NNCC's Director of Nursing Jonathan Perry (id. at 6), and NNCC's Director of Nursing "Perry", (id. at 13).

         The screening order refers to John Perry. (ECF No. 3 at 3, 4, 5, 6.)

         The Attorney General's Office initially filed a notice of acceptance of service on behalf of Shannon Moyle, noting that Dr. Karen Gedney and John B. Peery were former employees who had not yet requested representation. (ECF No. 13.) Their last known addresses were filed under seal for service. (ECF No. 14.) The court issued summonses for Dr. Gedney and John B. Peery. (ECF Nos 16, 17.) Dr. Gedney was served (ECF No. 18), and the Attorney General's Office indicated it would be representing her (ECF Nos. 18, 20). Peery was subsequently served (ECF No. 29), and notified the court that this was a mistake, as he was no longer working at NNCC when the events described in the complaint allegedly occurred (ECF No. 31). The Attorney General's Office then filed the instant motion for summary judgment on his behalf, arguing that he is not the proper defendant to this action. (ECF Nos. 33, 34.)

         II. LEGAL STANDARD

         "The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Northwest Motorcycle Ass'n v. U.S. Dep't of Agric, 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). "The court shall grant summary judgment if 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). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce ...

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