United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
defendants' motion for summary judgment (ECF Nos. 55, 56
(sealed)). Plaintiff opposed (ECF No. 87), and defendants
replied (ECF No. 90). Also before the court is
plaintiff's motion for preliminary injunction (ECF No.
41). Defendants opposed (ECF Nos. 47, 48 (sealed), 50, 51
(sealed)) and plaintiff replied (ECF No. 53). For the reasons
stated below, the court recommends that defendants'
motion for summary judgment (ECF No. 55) be granted, and
plaintiff's motion for preliminary injunction (ECF No.
41) be denied as moot.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Deeds (“plaintiff”) is an inmate in the custody
of the Nevada Department of Corrections (“NDOC”).
Although currently housed at Warm Springs Correctional Center
(“WSCC”), the events that give rise to this
action transpired at Ely State Prison (“ESP”).
Pursuant to 42 U.S.C. § 1983, plaintiff brings civil
rights claims against NDOC and ESP officials. On January 19,
2016, plaintiff filed his complaint asserting numerous
counts. (ECF No. 8.) The District Court screened the
complaint and allowed two claims to proceed. (See
ECF No. 13.)
first claim, plaintiff asserts Eighth Amendment deliberate
indifference against defendants Michael Koehn
(“Koehn”) and Romeo Aranas (“Aranas”)
for the alleged failure to provide adequate food.
(See ECF No. 8.) Specifically, plaintiff alleges
that he has a history of Crohn's disease and only a
two-to-three-foot length of digestive tract remaining. (ECF
No. 8 at 7- 8.) Without a proper diet and pain medication,
plaintiff's conditions cause a variety of symptoms,
including, but not limited to, frequent diarrhea,
incontinence, and abdominal pain. (Id. at 7.)
Plaintiff alleges that on August 28, 2013, Koehn
“discontinued a low-fat diet” that was helping
plaintiff's symptoms. (Id. at 8.) Plaintiff
asserts that on April 4, 2014, Koehn “refused to order
[plaintiff] be given a diet appropriate to [his] condition,
saying it was prison policy/practice not to provide such a
diet.” (Id.) Further, plaintiff alleges that
on May 5, 2014, Aranas refused to reinstate the prescription
relating to plaintiff's diet. (Id.)
second claim, plaintiff asserts Eighth Amendment deliberate
indifference against defendant Renee Baker
(“Baker”) based on excessive noise. (Id.
at 11.) Specifically, plaintiff alleges that he has suffered
violations of his Eighth Amendment rights due to excessive
noise. (Id.) Plaintiff complains of “loud and
relentless yelling and screaming of other inmates nearby
locked inside their own [cells], and louder yet banging of
cell doors and walls” at ESP. (Id.) Plaintiff
asserts that Baker knew of the excessive noise, because
plaintiff repeatedly complained about it to her, but she
failed to address his complaints. (Id.)
now move for summary judgment based on the following: 1)
there is no evidence that defendants Aranas and Koehn were
deliberately indifferent to plaintiff's serious medical
need; 2) there is no evidence that defendant Baker was
deliberately indifferent to plaintiff's conditions of
confinement; and 3) defendants Aranas and Baker did not
personally participate in the alleged constitutional
violations. (ECF No. 55 at 13-17.)
has moved for a preliminary injunction requesting the
following relief: 1) that plaintiff only be transferred to
Northern Nevada Correctional Center; 2) that he be provided
his duly prescribed medication; and 3) that he be provided
his prescribed medical diet. (ECF No. 41 at 3.)
judgment allows the court to avoid unnecessary trials.
Nw. Motorcycle Ass'n v. U.S. Dep't of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court
properly grants summary judgment when the record demonstrates
that “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). “[T]he substantive law will identify which
facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). A dispute is “genuine” only
where a reasonable jury could find for the nonmoving party.
Id. Conclusory statements, speculative opinions,
pleading allegations, or other assertions uncorroborated by
facts are insufficient to establish a genuine dispute.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007); Nelson v. Pima Cmty. Coll., 83
F.3d 1075, 1081-82 (9th Cir. 1996). At this stage, the
court's role is to verify that reasonable minds could
differ when interpreting the record; the court does not weigh
the evidence or determine its truth. Schmidt v. Contra
Costa Cnty., 693 F.3d 1122, 1132 (9th Cir. 2012);
Nw. Motorcycle Ass'n, 18 F.3d at 1472.
judgment proceeds in burden-shifting steps. A moving party
who does not bear the burden of proof at trial “must
either produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element” to support its case. Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000). Ultimately, the moving party must demonstrate, on
the basis of authenticated evidence, that the record
forecloses the possibility of a reasonable jury finding in
favor of the nonmoving party as to disputed material facts.
Celotex, 477 U.S. at 323; Orr v. Bank of Am., NT
& SA, 285 F.3d 764, 773 (9th Cir. 2002). The court
views all evidence and any inferences arising therefrom in
the light most favorable to the nonmoving party. Colwell
v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).
the moving party meets its burden, the burden shifts to the
nonmoving party to “designate specific facts
demonstrating the existence of genuine issues for
trial.” In re Oracle Corp. Sec. Litig., 627
F.3d 376, 387 (9th Cir. 2010) (citation omitted). “This
burden is not a light one, ” and requires the nonmoving
party to “show more than the mere existence of a
scintilla of evidence. . . . In fact, the non-moving party
must come forth with evidence from which a jury could
reasonably render a verdict in the non-moving party's
favor.” Id. (citations omitted). The nonmoving
party may defeat the summary judgment motion only by setting
forth specific facts that illustrate a genuine dispute
requiring a factfinder's resolution. Liberty
Lobby, 477 U.S. at 248; Celotex, 477 U.S. at
324. Although the nonmoving party need not produce
authenticated evidence, Fed.R.Civ.P. 56(c), mere assertions,
pleading allegations, and “metaphysical doubt as to the
material facts” will not defeat a properly-supported
and meritorious summary judgment motion, Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
purposes of opposing summary judgment, the contentions
offered by a pro se litigant in motions and
pleadings are admissible to the extent that the contents are
based on personal knowledge and set forth facts that would be
admissible into evidence and the litigant attested under
penalty of perjury that they were true and correct. Jones
v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
Civil Rights Claims ...