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Holden v. State ex rel. Department of Corrections

United States District Court, D. Nevada

September 18, 2017

JIM BASS HOLDEN, Plaintiff,
v.
STATE OF NEVADA, ex. rel., NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          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 Plaintiff's Motion for Partial Summary Judgment. (ECF No. 32, Suppl. at ECF Nos. 35, 36.) Defendants filed a response (ECF No. 45), and Plaintiff filed a reply (ECF No. 50).

         After a thorough review, the court recommends that Plaintiff's motion be denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding with this action pursuant to 42 U.S.C. § 1983. While he filed the complaint and first amended complaint (FAC) pro se, he is now represented by counsel. (See ECF No. 28.) The court has concurrently issued an order granting Plaintiff leave to amend to file a second amended complaint (SAC). That decision has no bearing on the instant motion.

         The events giving rise to this action took place while Plaintiff was housed at High Desert State Prison (HDSP), Lovelock Correctional Center (LCC), and Northern Nevada Correctional Center (NNCC). (Id.) Plaintiff's action asserts violations of the Eighth Amendment and Nevada Constitution for alleged deliberate indifference to his health, safety and serious medical needs based on allegations that he is fair skinned and was placed in administrative segregation (ad-seg) at HDSP and his access to recreation time was in an exposed steel cage with no protection from the sun's harmful rays, which regularly exceed 100 degrees in the spring and summer months. He alleges he was denied access to sunscreen either from the prison's store or the medical department. In addition, he claims that he attempted to seek medical treatment for his changing moles, freckles and skin lesions for approximately four years. He avers that even when prison officials knew some of his lesions were cancerous, they refused to look at other skin lesions or order biopsies to determine whether they were cancerous and required removal, or otherwise provide proper treatment for his skin condition.

         Plaintiff has filed a Motion for Partial Summary Judgment, stating that Plaintiff served its initial expert disclosure on February 9, 2017, and Defendants did not disclose a rebuttal expert. The disclosure contained the expert report and medical opinions of Dr. Noel Rowan that Defendants' deprivation of sunscreen was the proximate cause of Plaintiff's basal cell carcinoma (BCC). Plaintiff argues that because Defendants did not disclose a rebuttal expert, Plaintiff is entitled to summary judgment on the issue of the cause of Plaintiff's basal cell carcinoma.

         Defendants oppose the motion. They acknowledge they did not disclose a rebuttal expert, but contend they dispute the cause of Plaintiff's skin condition, and that the jury is still free to reject Plaintiff's expert's testimony.

         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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