United States District Court, D. Nevada
JAMES C. KELLEY, Plaintiff,
DR. KAREN GEDNEY, et al, Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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
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.
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).
screening order refers to John Perry. (ECF No. 3 at 3, 4, 5,
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.)
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 ...