United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
Report and Recommendation is made to the Honorable Robert C.
Jones, United States District Judge. The action was referred
to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and LR IB 1-4. Before the court is
defendant's motion for summary judgment (ECF No. 81),
plaintiff's opposition (ECF No. 89), and defendant's
reply (ECF No. 94). Having reviewed the record and papers,
the court recommends that defendant's motion be granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Hall (“plaintiff”) is an inmate in the custody of
the Nevada Department of Corrections (“NDOC”),
incarcerated at all relevant times at Northern Nevada
Correctional Center (“NNCC”). Acting pro
se and pursuant to 42 U.S.C. § 1983, plaintiff
asserts three counts of Eighth Amendment deliberate
indifference against NNCC dentist Dr. Gene Yup (“Dr.
Yup”), NNCC Nursing Director John Keast
(“Keast”), and NDOC Medical Director Dr. Aranas
(“Dr. Aranas”) (collectively,
“defendants”). (ECF No. 10; ECF No. 40.)
forth in plaintiff's third amended complaint, all three
counts concern dental complications that plaintiff
experienced from September 2014 through May 2015. (ECF No.
40.) In Count I, plaintiff alleges that Dr. Yup repeatedly
injured plaintiff's teeth and gums, failed to treat an
ensuing infection that lasted eight months, and failed to
prescribe plaintiff an appropriate diet. (Id. at 4.)
Additionally, the only pain management Dr. Yup provided to
plaintiff was a temporary prescription for Tylenol, and he
“took that away when plaintiff said it was not easing
the pain.” (Id.) In Count II, plaintiff argues
that Dr. Aranas failed to hire a sufficient number of
dentists to timely treat plaintiff's dental issues.
(Id. at 5.) Furthermore, Dr. Aranas waited nearly
eight months to approve and schedule plaintiff for treatment
at an outside facility capable of resolving plaintiff's
dental issues. (Id.) In Count III, plaintiff brings
a deliberate indifference claim against Keast for failing to
schedule plaintiff to be seen by a medical provider, despite
being aware of plaintiff's “painful infected
partially removed tooth.” (Id.) Finally,
plaintiff states briefly in his complaint that he
“asserts the tort of medical malpractice pursuant to
N.R.S. 41A.100.” (Id. at 3.)
motion for summary judgment, filed on October 12, 2017,
provides the court with additional details regarding
plaintiff's dental treatment. (ECF No. 81.) Plaintiff
does not dispute the following facts. On September 23, 2014,
plaintiff submitted an emergency grievance demanding that he
see a dentist to extract a painful tooth. (Id. at 3;
Def. Exh. B at 3.) He was taken to the NNCC dental clinic
that day, ordered to temporarily discontinue his blood
thinning medication, and scheduled to have his tooth
extracted three days later. (Def. Exh. B at 3.) Dr. Yup
extracted plaintiff's tooth #32, but could not remove some
of the root tips of the tooth. (Def. Exh. D at 1.) On October
1, 2014, plaintiff submitted a medical kite demanding to have
“the rest of the tooth pulled, ” and notified
NNCC that “another tooth is bad to[o].” (Def.
Exh. B at 1.) Two days later, on October 3, 2014, Dr. Yup
extracted plaintiff's tooth #31, and attempted to extract
the remnants of plaintiff's tooth #32. (ECF No. 81 at 5.)
one month later, on November 2, 2014, plaintiff submitted an
informal grievance alleging that Dr. Yup extracted a
“good tooth, ” and that plaintiff was still in
pain from the prior extraction. (Def. Exh. I at 2.) On
November 25, 2014, plaintiff appealed his grievance to the
first level and requested to be seen by “someone else
other than Dr. Gene Yup.” (Id. at 4; ECF No.
20.) On December 29, 2014, plaintiff received a first level
response from Keast informing plaintiff that Dr. Yup was the
only dentist available at NNCC. (Def. Exh. I at 3.) Plaintiff
appealed this response to the second level on February 2,
2015, and on March 25, 2015, he received a second level
response informing him that he was scheduled to be seen by an
outside dentist. (Id. at 6.) Finally, in May 2015,
an outside dentist fully removed the remnants of
plaintiff's tooth #32. (Def. Exh. G at 5-6.)
move for summary judgment on the grounds that (1) no Eighth
Amendment violation occurred, and (2) defendant is entitled
to qualified immunity. Because the court agrees that
plaintiff's Eighth Amendment rights were not violated, it
need not reach the issue of qualified immunity.
judgment allows the court to avoid unnecessary trials.
Nw. Motorcycle Ass'n v. U.S. Dep't of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court
properly grants summary judgment when the record demonstrates
that “there is no genuine issue as to any material fact
and the movant is entitled to judgment as a matter of
law.” 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 (1986). A dispute is “genuine” only
where a reasonable jury could find for the nonmoving party.
Id. Conclusory statements, speculative opinions,
pleading allegations, or other assertions uncorroborated by
facts are insufficient to establish a genuine dispute.
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
984 (9th Cir. 2007); Nelson v. Pima Cmty. Coll., 83
F.3d 1075, 1081-82 (9th Cir. 1996). At this stage, the
court's role is to verify that reasonable minds could
differ when interpreting the record; the court does not weigh
the evidence or determine its truth. Schmidt v. Contra
Costa Cnty., 693 F.3d 1122, 1132 (9th Cir. 2012);
Nw. Motorcycle Ass'n, 18 F.3d at 1472.
judgment proceeds in burden-shifting steps. A moving party
who does not bear the burden of proof at trial “must
either produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element” to support its case. Nissan Fire &
Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th
Cir. 2000). Ultimately, the moving party must demonstrate, on
the basis of authenticated evidence, that the record
forecloses the possibility of a reasonable jury finding in
favor of the nonmoving party as to disputed material facts.
Celotex, 477 U.S. at 323; Orr v. Bank of Am., NT
& SA, 285 F.3d 764, 773 (9th Cir. 2002). The court
views all evidence and any inferences arising therefrom in
the light most favorable to the nonmoving party. Colwell
v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).
the moving party carries its burden, the nonmoving party must
“designate specific facts demonstrating the existence
of genuine issues for trial.” In re Oracle Corp.
Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
“This burden is not a light one, ” and requires
the nonmoving party to “show more than the mere
existence of a scintilla of evidence. . . . In fact, the
non-moving party must come forth with evidence from which a
jury could reasonably render a verdict in the non-moving
party's favor.” Id. (internal citations
and quotations omitted). The nonmoving party may defeat the
summary judgment motion only by setting forth specific facts
that illustrate a genuine dispute requiring a
factfinder's resolution. Liberty Lobby, 477 U.S.
at 248; Celotex, 477 U.S. at 324. The Ninth Circuit
follows a “policy of liberal construction in favor of
pro se litigants.” Rand v. Rowland,
154 F.3d 952, 957 (9th Cir. 1998). Accordingly, for purposes
of opposing summary judgment, a reviewing court will consider
as evidence the allegations a pro se litigant offers
in motions and pleadings, where the allegations are based on
personal knowledge and set forth facts that would be
admissible into evidence, and where the litigant attested
under penalty of perjury that they are true and correct.
Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
Nevertheless, mere assertions, pleading allegations, and
“metaphysical doubt as to the material facts”
will not defeat a properly-supported and meritorious summary
judgment motion. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586- 87 (1986).
Legal Standards for Civil Rights Claims under §
U.S.C. § 1983 aims “to deter state actors from
using the badge of their authority to deprive individuals of
their federally guaranteed rights.” Anderson v.
Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting
McDade v. West, 223 F.3d 1135, 1139 (9th Cir.
2000)). The statute “provides a federal cause of action
against any person who, acting under color of state law,
deprives another of his federal rights[, ]” Conn v.
Gabbert, 526 U.S. 286, 290 (1999), and therefore
“serves as the procedural device for enforcing
substantive provisions of the Constitution and federal
statutes, ” Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991). Claims under ...