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Gibson v. Southern Desert Correctional Center

United States District Court, D. Nevada

September 14, 2017

DAMIEN GIBSON, Plaintiff,
v.
SOUTHERN DESERT CORRECTIONAL CENTER, ET AL., Defendants.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE.

         Presently before the Court is Defendants' Motion for Summary Judgement (#21). Plaintiff Damien Gibson filed a response in opposition (#25) to which Defendants replied (#26). Also before the Court is Defendants' Motion to Strike (#29). Though the time for doing so has passed, Plaintiff has failed to file a response in opposition. Therefore, in accordance with Local Rule 7-2(d), and good cause being found, the motion to strike is granted.

         I. Background

         On December 12, 2012, Gibson stepped on a rock in the yard at SDCC and thereafter had pain in his left foot. On January 11, 2013 he requested a medical appointment. On January 18, 2013, while in medical for a regularly scheduled appointment, Gibson told Defendant Gutierrez, a nurse, about his foot pain. Gutierrez said he would relay the message to the doctor. Gibson saw the doctor, Defendant Sanchez, on January 28, 2013, who diagnosed Gibson with plantar fasciitis. Dr. Sanchez recommended a conservative treatment plan of rest, ibuprofen for pain management, and a topical pain reliever. After continued pain, Gibson's foot was x-rayed on March 20, 2013. The medical staff agreed that there was a medical problem with Gibson's foot, but the x-rays showed no apparent damage, injury, or abnormalities to Gibson's foot. Follow up visits continued to recommend the same conservative treatment of ibuprofen and topical pain reliever, with the additional guideline to rest and avoid prolonged standing or walking.

         On April 16, 2013, Sanchez told Gibson that special shoes with better arch support might alleviate his pain and suggested he contact the warden to request a “shoe chronicle.” On April 22, 2013, Warden Williams responded to Gibson's inquiry that “if medical has determined that you need a special shoe, it is their responsibility to provide a medical shoe.” (#3 at 85). Gibson went to medical appointments on May 19 and 30, which he thought would lead to ordering his shoes. Medical was unable to directly obtain the “New Balance” shoes that Gibson required.

         Sanchez gave Gibson permission to order a pair of New Balance shoes, and sent a letter to the property room to that effect. (#3 at 91). An upheld grievance report dated May 31, 2013, confirmed that Gibson was authorized to order New Balance shoes for his medical need.

         In July, Gibson was seen by an outside orthopedist, Dr. Wolf, who confirmed Dr. Sanchez's diagnosis of plantar fasciitis. Dr. Wolf recommended ibuprofen, a splint to be worn at night, and stretching exercises, a treatment regime in line with the guidance he had received from SDCC medical staff. At medical appointments in July and September, Gibson's pain medications were refilled. At the September medical appointment, Gibson's foot showed improvement, both in reported pain and in observed ambulation.

         In December 2013, Gibson's mother ordered him a pair of shoes which were delivered to SDCC. These shoes were returned to the sender on December 19, 2013, without any notification to Gibson that they had arrived and been rejected. On January 23, 2014, Gibson went to the property room to inquire about his shoes. Navarette told him they had previously arrived but been sent back.

         Plaintiff then filed the present complaint. An initial screening order reviewed Gibson's complaint and allowed two claims to proceed: (1) a deliberate indifference to serious medical needs claim against Sanchez, Gutierrez, Williams, Adams, Sisco, and Navarette; and (2) a due process claim against Williams, Adams, Navarette, and Sisco. (#2 at 8).

         II. Summary judgment standard

         The Court properly grants summary judgment when the record demonstrates that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(a); 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, 248-49 (1986).

         A dispute is “genuine” only where a sufficient evidentiary basis would allow a reasonable jury to find for the nonmoving party. Id. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288- 89 (1968)). The plaintiff bears the burden to produce evidence to defeat a properly supported motion for summary judgment by showing there are genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). Even when such evidence would be in the possession of the defense, the plaintiff must use discovery to produce evidence, or summary judgment may be granted. Id.

         Evidence must be viewed in a light most favorable to the opponent of the motion, and all reasonable inferences must be drawn in his favor. U.S. ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1995), as amended (May 26, 1995) (citing T.W. Elec. Svc., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626 630-31 (9th Cir. 1987)). However, inferences are limited to those upon which a reasonable jury might return a verdict. Id.

         III. Discussion

         Defendants have now moved for summary judgment on all claims. They argue: (1) that they are not liable in their official capacity; and (2) that they are entitled to qualified immunity. Defendants also deny: (3) that they were deliberately indifferent to Gibson's serious medical need; and (4) that they denied Gibson due process rights.

         A. Official capacity claims

         Liability under 42 U.S.C. §1983 arises only upon personal participation by the defendant. Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979). “A person deprives another ‘of a constitutional right, within the meaning of Section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains].'” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (alteration in original) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation. Id.

         States are not “persons” within the meaning of 42 U.S.C. §1983. Will v. Michigan Department of State Police, 491 U.S. 58, 64-70 (1989). A plaintiff cannot maintain a § 1983 action against a state. Id. When a state official is sued in their official capacity, the suit is not truly brought against the official, but against the official's office. Id. at 71. Such an action, therefore, is effectively a suit against the state itself. Id. Therefore, a Section 1983 action cannot be properly brought against the state or a state official acting in his or her official capacity, regardless of whether the complaint is filed in state or federal court. Id. at 64-71.

         In his initial complaint, Gibson sued all defendants in both their individual and official capacities. Since section 1983 actions cannot be maintained against persons in their official capacities, all claims against ...


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