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Cacho v. Johns

United States District Court, D. Nevada

August 9, 2017

ASHTON E. CACHO, Plaintiff,
v.
DR. JOHNS, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. 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 LR IB 1-4. Before the court is defendants' motion for summary judgment (ECF Nos. 20, 21 (sealed)). Plaintiff opposed (ECF No. 26), and defendants replied (ECF No. 28). For the reasons stated below, the court recommends that defendant's motion for summary judgment (ECF No. 20) be granted.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Ashton Cacho (“plaintiff”) is an inmate in the custody of the Nevada Department of Corrections (“NDOC”), and currently housed at Northern Nevada Correctional Center (“NNCC”) in Carson City, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff brings this action against Dr. Romeo Aranas, Dr. Marsha Johns, and Dr. Richard Long (collectively “defendants”).

         The alleged events giving rise to plaintiff's claim are as follows. After falling from a top bunk while sleeping, plaintiff sustained injuries to his right shoulder. (ECF No. 1-1 at 4.) On March 15, 2015, plaintiff re-injured his shoulder after he slipped in the shower at Lovelock Correctional Center. (Id.) On June 23, 2015, plaintiff was transferred to NNCC for further examination of his right shoulder pursuant to the examining doctor's orders. (Id.)

         While at NNCC, plaintiff alleges he “was repeatedly denied or delayed” treatment of his shoulder injury. (Id.) On October 7, 2015, Dr. Walls told plaintiff that due to this delay in treatment, his injury was too old to effectively operate on. (Id.) Dr. Walls did not perform an x-ray or MRI on plaintiff's shoulder. (Id.)

         Dr. Johns and Dr. Long repeatedly ordered MRIs for plaintiff, but then put other prisoners in plaintiff's place instead. (Id.) This delay has caused plaintiff extreme pain and has increased his risk of permanent disfigurement and disability. (Id.) Dr. Aranas has repeatedly approved and then cancelled Plaintiff's examinations. (Id. at 4-5.) When plaintiff asked Dr. Aranas about his delay in medical treatment, Dr. Aranas responded that plaintiff had an MRI and treatment scheduled on February 23, 2016. (Id. at 5.) However, plaintiff asserts that as of the date of this complaint, he has not had treatment or a consultation. (Id.) Dr. Johns, Dr. Long, and Dr. Aranas knew that plaintiff needed medical treatment, yet they repeatedly scheduled and cancelled plaintiff's appointments with no concern for plaintiff's continued pain and disability. (Id.) Plaintiff's treatment for his shoulder has been delayed for over a year. (Id. at 4.)

         On November 1, 2016, the District Court entered a screening order pursuant to 28 U.S.C. § 1915, allowing plaintiff to proceed with his Eighth Amendment deliberate indifference claim against defendants. (ECF No. 3 at 5.) Defendants now moves for summary judgment based on the following: 1) plaintiff failed to exhaust his administrative remedies; 2) defendants did not personally participate in the alleged deprivation; and 3) plaintiff has suffered no actionable injury or harm by any delay in the scheduling of his MRI. (ECF No. 20 at 6-11.)

         II. LEGAL STANDARD

         Summary 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.

         Summary 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).

         Where 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 fact finder'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 (1986).

         For 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).

         III.DISCUSSION

         A. Civil Rights Claims ...


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