United States District Court, D. Nevada
ASHTON E. CACHO, Plaintiff,
DR. JOHNS, et al., Defendants.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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
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
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.
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.)
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.)
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 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
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).
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