United States District Court, D. Nevada
J. DAWSON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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
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.
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.
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).
Summary judgment standard
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).
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.
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.
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.
Official capacity claims
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
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.
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 ...