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Hall v. Yup

United States District Court, D. Nevada

March 7, 2018

DAMIAN HALL, Plaintiff,
DR. GENE YUP, et al., Defendant.


         This 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.


         Damian 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.)

         As set 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.)

         Defendant's 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[1], 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.)

         Approximately 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. 9[2] at 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.)

         Defendants 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.


         Summary 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.

         Summary 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).

         Where 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).


         A. Legal Standards for Civil Rights Claims under § 1983

         42 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 ...

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