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Reberger v. Koehn

United States District Court, D. Nevada

February 8, 2019

LANCE REBERGER, Plaintiff,
v.
ESP GENERAL PRACTICIONER MICHAEL KOEHN, et al., Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE [1]

         This case involves a civil rights action filed by Plaintiff Lance Reberger (“Reberger”) against Defendants Romeo Aranas, Dawn Jones, Michael Koehn, and Teresa Stark (collectively referred to as “Defendants”). Currently pending before the Court is a motion for summary judgment filed by Defendants. (ECF No. 189.) Reberger opposed, (ECF No. 247), and Defendants replied. (ECF No. 255). Having thoroughly reviewed the record and papers, the Court hereby recommends that Defendants' motion for summary judgment be granted.[2]

         I. BACKGROUND AND PROCEDURAL HISTORY

         A. Procedural History

         Reberger is an inmate in the custody of the Nevada Department of Corrections (“NDOC”) and is currently housed at Ely State Prison (“ESP”). (ECF No. 8.) However, the events giving rise to this case took place at ESP and at High Desert State Prison (“HDSP”) in Indian Springs, Nevada. (Id.) On November 8, 2015, Reberger submitted a civil rights complaint pursuant to 42 U.S.C. §1983 together with a Motion for Leave to two Proceed in forma pauperis. (ECF No. 8.) In the complaint, Reberger asserted two claims for relief against Defendants. (Id.) Reberger sought monetary damages and injunctive relief. (Id.)

         Pursuant to 28 U.S.C. § 1915A(a), the Court screened Reberger's complaint on June 15, 2016, which determined both claims could proceed. (ECF No. 9.) In the screening order, the court allowed Reberger to proceed on the following claims: (1) Count I, a deliberate indifference claim based on the Eighth Amendment; and (2) Count II, a retaliation claim based on the First Amendment. (Id.)

         Between 2015 to the present, the parties have engaged in extensive and protracted litigation. This has included the filing of various motions by both Reberger and Defendants on a variety of topics - including various motions for preliminary injunctions, discovery motions, motions for reconsideration and the like.

         Defendants have now filed a second motion for summary judgment, which seeks dismissal of all claims. (ECF No. 189.) The factual basis of each of these claims is as follows:

         B. Factual Background Related to Count I

         In Count I, Reberger asserts Defendants are placing him in imminent danger by refusing to allow him to have his HIV medications “Keep on Person”[3] (“KOP”). (ECF No. 8.) Specifically, Reberger asserts that his HIV medications are “required to be consumed with food every 12 hours - no exceptions” (Id., at 4), but “ESP nurses administer all [his] medications daily anywhere from 9 ½ to 16 hours apart, not the 12 hours apart as required by Abbvie company policy.” (Id. at 5.) Reberger asserts that Defendants refused to provide [him] his KOP's especially his HIV medications and they are trying to make his HIV meds resistant where [he] will progress to AIDS with untreatable infections leading to hospitalization and death. (ECF No. 8 at 6.) He further asserts that his viral load, CD4-T cell, Red Blood Cell, White Blood cell, and Cholesterol counts have “changed drastically and his HIV meds are beginning to not work any longer due to all the time differences.” (Id., at 5.) Reberger alleges an Eighth Amendment violation. (Id.)

         C. Factual Background Related to Count II

         In Count II, Reberger asserts Defendants retaliated against him for filing grievances against Dr. Koehn and Aranas. (ECF No. 8, at 12.) Specifically, Reberger asserts that he “has written prison kites to Koehn and Aranas for KOP's of all his required medications and they both have refused to order [him] to possess his KOP's retaliating for past grievances filed and Koehn [is] retaliating for being previously overruled by the previous medical director, Bruce Bannister.” (Id. at 9.) Further, Reberger asserts that if his HIV medications continue to be delivered at irregular times, he will “become resistant over time which forces [his] HIV to develop into AIDS which leads to many painful HIV infections, hospitalization and eventual death which is what Koehn and Aranas seek because of [his] grievances filed against them, and Koehn is still angry [about] being overruled by [Bannister].” (Id. at 6 - 7.) Although Reberger never filed grievances against Jones or Stark, he asserts that they too are complicit because they “are following Koehn's orders trying to hurt [him].” (Id. at 3.) Reberger alleges a First Amendment violation. (Id. at 12.)

         D. Defendants' Motion for Summary Judgment

         On March 27, 2018, Defendants filed a motion for summary judgment seeking dismissal of all claims. (ECF No. 189.) As to the deliberate indifference claim (Count I), Defendants argue they were not deliberately indifferent to Reberger's serious medical needs because they provided him with his HIV medication as prescribed and in accordance with the drug manufacturer's recommendations. (Id. at 7 - 9.) Defendants also argue that, even if there are issues of fact on this claim, they are entitled to qualified immunity because they were not on clear notice that delivering a drug as prescribed and at the times recommended by the manufacturer would be deemed a constitutional violation. (Id. at 10 - 13.)

         As to the retaliation claim (Count II), Defendants assert summary judgment should be granted because there was no adverse action against Reberger. (Id. at 9 - 10.) While Defendants denied Reberger's request to have his HIV medication KOP, medical staff still delivered his prescriptions to him as prescribed, and at the times recommended by the drug manufacturer, thus contrary to Reberger's claims, he was not adversely affected by their decision. (Id.)

         In response, Reberger argues that summary judgment should not be granted. (ECF No. 247.) He broadly argues Defendants' undisputed facts are false, Defendants' procedural history is incorrect, Defendants' account of his medical history is incorrect, Defendants' legal standard is incorrect, and Defendants' witness declarations are false. (ECF No. 247.)

         In reply, Defendants argue much of Reberger's factual allegations are unsupported by admissible evidence and must be disregarded when ruling on the summary judgment motion. (ECF No. 255 at 3 - 14.) Defendants also reiterate their arguments related to their lack of deliberate indifference, the lack of adverse actions against Reberger, and their entitlement to qualified immunity. (ECF No. 255 at 15 - 18.)

         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 ...


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