United States District Court, D. Nevada
RICHARD L. GRUBER, Plaintiff,
KAREN GEDNEY, et al., Defendants.
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
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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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).
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.”
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.)
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.
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
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.)
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
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 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
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).
Failure to Exhaust Administrative Remedies
Exhaustion under the PLRA
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 ...