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Olausen v. Yup

United States District Court, D. Nevada

September 13, 2017

JOHN STEVEN OLAUSEN, Plaintiff,
v.
GENE YUP, Defendant.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB, UNITED STATES 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 the Local Rules of Practice, LR 1B 1-4.

         Before 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. 56).

         After a thorough review, the court recommends granting Dr. Yup's motion.

         I. BACKGROUND

         Plaintiff 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.

         On 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.)

         Dr. Yup 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.

         II. LEGAL STANDARD

         "The 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.

         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 ...

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