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