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Gruber v. Gedney

United States District Court, D. Nevada

July 11, 2018

RICHARD L. GRUBER, Plaintiff,
v.
KAREN GEDNEY, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

         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 defendants' motion for summary judgment (ECF Nos. 67, 69 (sealed)). Plaintiff opposed (ECF No. 91), and defendants replied (ECF No. 99). The court recommends that defendant's motion for summary judgment (ECF No. 67) be granted in part, and denied in part, as detailed below.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Richard Gruber (“plaintiff”) is an inmate in the custody of the Nevada Department of Corrections (“NDOC”), and currently housed at Northern Nevada Correctional Center (“NNCC”) in Carson City, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff brings this action against Dr. Karen Gedney (“Dr. Gedney”), Dr. Romeo Aranas (“Dr. Aranas”), Dr. Dana Marks (“Dr. Marks”) (collectively “defendants”). (See ECF No. 34).

         According to plaintiff's first amended complaint, the alleged events giving rise to plaintiff's claim are as follows. (Id.) Plaintiff alleges that he was diagnosed with Parkinson's Disease (“PD”) before being incarcerated on March 11, 2005. (Id. at 5.) He immediately put the NDOC on notice of his diagnosis. (Id.) Beginning in June 2014, the severity of plaintiff's symptoms increased exponentially in severity, such that plaintiff is often unable to eat food, brush his teeth, shave his face, walk to the dining halls and bathrooms, or sleep. (Id. at 6.) Plaintiff complains that due to his difficulty walking, “several times [he has] been battered by other prisoners when he lost his balance and stumbled into other prisoners.” (Id.)

         Plaintiff notified Dr. Gedney about his worsening PD symptoms, but Dr. Gedney refused to provide medical treatment in response to plaintiff's complaints or take any steps to protect plaintiff. Plaintiff asserts that Dr. Gedney made the following statements: “[PD] is expensive to treat. If we [NDOC medical personnel] don't diagnose [PD], we don't have to treat you for [PD], ” “there is no medication that will help, you will have to deal with it, ” and, “doctors that cost the NDOC a lot of money treating prisoners don't last long.” (Id.)

         In 2016, plaintiff began seeing his new doctor - Dr. Marks. (Id.) Plaintiff told Dr. Marks at several of his medical appointments about his severe symptoms and their effect on his daily life, but Dr. Marks refused to provide medical treatment in response to plaintiff's complaints or take any steps to protect plaintiff. (Id.) However, plaintiff asserts that Dr. Marks has said that “there's no doubt you have [PD], ” but that plaintiff should try to “hang tight until you're released from prison” before seeking treatment. (Id.)

         As a result of Dr. Gedney and Dr. Marks's refusal to treat plaintiff's PD, plaintiff continues to suffer a decline in his physical functioning. (Id. at 7-8.) Specifically, he alleges that he experiences extreme mental and psychological anguish, extreme hunger at times when he is unable to walk to the dining facility, and has been subjected to additional altercations with other prisoners due to his difficulty walking and inability to take care of his personal hygiene. (Id.)

         Finally, plaintiff claims that Dr. Aranas has known that plaintiff is suffering from severe symptoms of PD since 2015. (Id. at 8.) Yet, Dr. Aranas has failed to provide or authorize any treatment for plaintiff's PD. (Id.) Plaintiff further alleges that many of his medical kites concerning his PD have been ignored. (Id.) Based on these allegations, plaintiff brings an Eighth Amendment claim of deliberate indifference to his serous medical needs against Dr. Gedney, Dr. Marks, and Dr. Aranas. (Id.) He seeks monetary damages from each defendant, declaratory relief, costs, and injunctive relief requiring NDOC to properly treat his PD and provide plaintiff with a long handle toothbrush and an electric shaver. (Id. at 9.)

         On March 3, 2016, the District Court entered a screening order pursuant to 28 U.S.C. § 1915, allowing plaintiff to proceed with his Eighth Amendment deliberate indifference claim against defendants. (ECF No. 7.) Defendants now moves for summary judgment based on the following: 1) Plaintiff's claims are barred by the statute of limitations because he did not file his complaint until over ten years after his Eighth Amendment deliberate indifference claim accrued; 2) Plaintiff failed to exhaust his administrative remedies because he did not file his grievance until more ten years after his intake at NNCC; 3) Dr. Aranas did not personally participate in the alleged deprivation of medical treatment; 4) Plaintiff's Eighth Amendment claim will fail on the merits because he was diagnosed with Parkinsonism rather than PD, and prescribed medical therapy based on this diagnosis; and 5) even if an Eighth Amendment violation occurred, defendants are entitled to qualified immunity. (ECF No. 67.) Plaintiff opposed (ECF No. 91), and defendants replied (ECF No. 99.) The recommended disposition follows.

         II. LEGAL STANDARD

         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 meets its burden, the burden shifts to the nonmoving party to “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) (citation omitted). “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. (citations 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. Although the nonmoving party need not produce authenticated evidence, Fed.R.Civ.P. 56(c), 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).

         For purposes of opposing summary judgment, the contentions offered by a pro se litigant in motions and pleadings are admissible to the extent that the contents are based on personal knowledge and set forth facts that would be admissible into evidence and the litigant attested under penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

         III. DISCUSSION

         A. Failure to Exhaust Administrative Remedies

         1. Exhaustion under the PLRA

         The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016); Porter v. Nussle, 534 U.S. 516, 524 (2002). The PLRA requires “proper exhaustion” of an inmate's claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the ...


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