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Kinsman v. NaphCare, Inc.

United States District Court, D. Nevada

March 15, 2018

Donald Kinsman, Plaintiff
NaphCare, Inc., et al., Defendants


          Jennifer A. Dorsey U.S. District Judge.

         Donald Kinsman sues NaphCare, Inc., Clark County Detention Center (CCDC), and the Las Vegas Metropolitan Police Department (Metro) for actions related to his medical care that he alleged occurred during his detention at CCDC. Kinsman alleges that the defendants are liable under state law for intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), negligence, and negligent hiring, supervision, training, and retention. In each claim for relief, Kinsman claims that the defendants' actions also violated 42 U.S.C. § 1983 “and the Fourth, Fifth, Eighth, and Fourteenth Amendments.”

         Metro is the only remaining defendant.[1] It moves for summary judgment on all claims. Because Kinsman cannot show a genuine issue of material fact for any of his claims, I grant summary judgment in Metro's favor.


         On January 7, 2015, Kinsman fractured his right wrist in a car accident.[2] He was transported to the University Medical Center (UMC) for treatment.[3] Before Kinsman was discharged, someone at the hospital told him and the Metro officer accompanying him that Kinsman needed to see an orthopedic surgeon within 72 hours.[4] Kinsman was then arrested and brought to CCDC, where he told a nurse that he needed to see an orthopedic surgeon.[5] At the time, NaphCare was responsible for medical services at CCDC.[6] The next day, a nurse practicioner examined Kinsman's arm, determined that his wrist was fractured, and treated the pain with ibuprofen.[7] He also prescribed Robaxin for Kinsman's shoulder and neck pain.[8] That same day, a NaphCare employee faxed UMC to request Kinsman's records and discharge summary.[9]

         Kinsman was examined by a physician's assistant (PA) for arm pain the next day. The PA continued Kinsman's medications and sent him the medical-observation unit. He noted that he needed the UMC records and planned a “likely future referral to ortho.”[10] Three days later, UMC sent Kinsman's medical records, but did not include the discharge-summary report reflecting Kinsman's need to see an orthopedic surgeon.[11]

         On January 21, 2015, Kinsman saw Dr. Mondora for a follow-up on his arm. Dr. Mondora prescribed Tylenol #3 for pain.[12] Later that day, a NaphCare employee faxed UMC again, asking for Kinsman's discharge summary.[13] Two days later, UMC sent the same medical records it had sent previously, again with no discharge summary.[14] Kinsman was released from CCDC on January 30, 2015.

         In December 2016, Kinsman filed this complaint alleging that Metro, CCDC, and NaphCare are liable under state law and § 1983 for their failure to provide proper medical care during his few weeks at CCDC. By March 2017, the claims against NaphCare and CCDC were dismissed under Local Rule 7-2(d) because Kinsman failed to oppose their motions to dismiss. Last-standing defendant Metro now moves for summary judgment on the claims against it. Because Kinsman cannot show a genuine dispute of material fact on any of his claims, I grant judgment in Metro's favor.


         Summary judgment is appropriate when the pleadings and admissible evidence “show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”[1] When considering summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[15] If reasonable minds could differ on material facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the facts are undisputed, and the case must then proceed to the trier of fact.[16]

         If the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to “set forth specific facts showing that there is a genuine issue for trial.”[17] The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”; he “must produce specific evidence, through affidavits or admissible discovery material, to show that” there is a sufficient evidentiary basis on which a reasonable fact finder could find in his favor.[18]

         A. Deliberate indifference

         A prisoner who claims inadequate medical care must show that prison officials were deliberately indifferent to his serious medical needs.[19] A plaintiff can prevail on a deliberate-indifference claim if he can show that prison officials denied, delayed, or intentionally interfered with medical treatment and that the delay or interference caused further injury.[20] Indifference to a prisoner's medical needs must be substantial; mere indifference, negligence, medical malpractice, or even gross negligence are insufficient to establish deliberate indifference.[21] A mere difference of medical opinion likewise does not suffice.[22] A prisoner must instead show that the course of treatment chosen was medically unacceptable under the circumstances and taken in conscious disregard to his health.[23]

         There is no respondeat superior liability for § 1983 claims; a municipal entity is only liable if the plaintiff shows that the execution of a municipal policy caused the constitutional injury.[24] To impose liability against a municipality for its failure to act, a plaintiff must show that: (1) a municipal employee violated the plaintiff's constitutional rights; (2) the municipality has customs or policies that amount to deliberate indifference; (3) these customs or policies caused the employee's violation of the plaintiff's constitutional rights.[25]

         Kinsman does not name any individual defendants in this action. He does not show that a Metro employee violated his constitutional rights. There is no evidence that the doctors and nurses who treated Kinsman, or the Metro officer who accompanied him to UMC, were deliberately indifferent to his medical needs. The record shows that Kinsman was evaluated and treated for his injuries multiple times during his brief incarceration. Any individual's alleged failure to refer Kinsman to an orthopedic surgeon, when they had no medical records indicating that such a referral was medically necessary, does not demonstrate deliberate indifference. Kinsman alleges that Metro, as an entity, was deliberately indifferent to his serious medical needs. But the only way a municipal department can be held liable for deliberate indifference under § 1983 is if it had a custom, policy, or practice that caused the deprivation of Kinsman's rights. Kinsman presents absolutely no evidence that any such policy or custom exists. So, I grant summary judgment in Metro's favor on Kinsman's deliberate-indifference claim.

         B. IIED and NIED

         Under Nevada law, the elements of a cause of action for IIED are “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress, and (3) actual or proximate causation.”[26] Extreme and outrageous conduct is conduct “outside all possible bounds of decency and [that] is regarded as utterly intolerable in a civilized community.”[27] To establish severe emotional distress, the plaintiff must present “objectively verifiable indicia of the severity of his emotional distress.”[28] General physical or emotional discomfort is insufficient to demonstrate severe emotional distress.[29] NIED requires “either a physical impact must have occurred or, in the absence of physical impact, proof of ‘serious emotion distress' causing physical injury or illness. . . .”[30]

         Kinsman fails to present evidence to support any of these elements. There is no evidence that Metro engaged in extreme and outrageous conduct. After Kinsman was transported to CCDC, he was promptly evaluated by a nurse and in the next few days was examined by a physician's assistant and a doctor. While Kinsman told CCDC medical staff that he was directed to see an orthopedic ...

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