United States District Court, D. Nevada
AARON K. DANIELS, Plaintiff,
DR. MAR et al., Defendants.
C. JOKES United States District Judge
AND PRECEDURAL HISTORY
Aaron Daniels is a prisoner in the custody of the Nevada
Department of Corrections at Ely State Prison. He sued
several Defendants in this Court under 42 U.S.C. § 1983
based on a failure to prescribe him orthopedic shoes and
destruction of his property during a cell search. The Court
dismissed upon screening. The Court of Appeals affirmed in
part and reversed in part, remanding the deliberate
indifference claim against Dr. Mar with instructions to give
leave to amend that claim as against other Defendants.
Plaintiff did not amend, and Dr. Mar has moved for summary
judgment against the remaining claim. The Magistrate Judge
has recommended denying the motion. The Court respectfully
disagrees and grants the motion.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even if the
underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”
prisoner can establish an Eighth Amendment violation arising
from deficient medical care if he can prove that prison
officials were deliberately indifferent to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Assuming the medical need is sufficiently serious, a
plaintiff must still show that the defendant acted with
deliberate indifference to that need. Id.
“Deliberate indifference is a high legal
standard.” Toguchi v. Chung, 391 F.3d 1051,
1060 (9th Cir. 2004). It entails something more than medical
malpractice or even gross negligence. Id. Deliberate
indifference exists when a prison official “knows of
and disregards an excessive risk to inmate health or safety;
the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Deliberate indifference exists when a prison official
“den[ies], delay[s] or intentionally interfere[s] with
medical treatment, or it may be shown by the way in which
prison officials provide medical care.” Crowley v.
Bannister, 734 F.3d 967, 978 (9th Cir. 2013) (internal
quotation marks and citation omitted). Critically, “a
difference of opinion between a physician and the prisoner-or
between medical professionals- concerning what medical care
is appropriate does not amount to deliberate
indifference.” Snow v. McDaniel, 681 F.3d 978,
987 (9th Cir. 2012) (citing Sanchez v. Vild, 891
F.2d 240, 242 (9th Cir. 1989), overruled on other grounds
by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir.
2014)). Instead, to establish deliberate indifference in the
context of a difference of opinion between a physician and
the prisoner or between medical providers, the prisoner
“‘must show that the course of treatment the
doctors chose was medically unacceptable under the
circumstances' and that the defendants ‘chose this
course in conscious disregard of an excessive risk to
plaintiff's health.'” Id. at 988
(quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th
it is not disputed that Dr. Mar examined Plaintiff only once,
on February 13, 2013 and noted the following:
Walk rapidly downstairs, no problem. Gait walking upstairs
normal, quick. Gait walking back from exam room normal,
quick. Gait in exam room slow with right leg limp. [Open
Reduction Internal Fixation] on both feet. Pain with walking.
Congenital flat feet.
0 = foot - No callous or skin breakdown. Foot invert (flat
feet). Surgical scar noted along mid of both metatarsal.
In exam room - Gait = limp with right legs with grimace on
face. Toe walk, heel walk normal. Walking up and down stair
and across tiers with no limping. Normal, easy quick ...