United States District Court, D. Nevada
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 1B 1-4.
the court is Defendant Dr. Gene Yup's Motion for Summary
Judgment. (ECF Nos. 44, 44-1 to 44-14.) Plaintiff filed a
response (ECF No. 53), and Dr. Yup filed a reply (ECF No.
thorough review, the court recommends granting Dr. Yup's
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. (Compl., ECF No. 4.) The
events giving rise to this action took place while Plaintiff
was housed at Northern Nevada Correctional Center (NNCC).
(Id.) Defendant is Dr. Gene Yup.
screening, the court allowed Plaintiff to proceed with an
Eighth Amendment claim of deliberate indifference to a
serious medical need related to dental treatment Plaintiff
received from Dr. Yup at NNCC between June 2013 and January
2015. (Screening Order, ECF No. 3.)
moves for summary judgment, arguing: (1) Plaintiff failed to
properly exhaust his administrative remedies before filing
suit; (2) Dr. Yup did not violate the Eighth Amendment
because he was not responsible for the delay in seeing
Plaintiff, and he performed the double tooth extraction under
emergency circumstances and provided follow up care and
ensured Plaintiff was seen by a specialist; and (3) he is
entitled to qualified immunity.
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, 477 U.S. at 250.
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 ...