United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
to Fed.R.Civ.P. 60(b), Defendants have moved for
reconsideration of the Court's order ("Order")
regarding Magistrate Judge Carta B. Carry's Amended
Report and Recommendation ("R&R")
("Motion"). (ECF Nos. 67, 71, 76.) Per its Order,
the Court accepted and adopted the R&R as to all claims
except an Eighth Amendment claim for deliberate indifference
to Plaintiff's serious medical needs that Plaintiff
asserted against Defendant Kerner. (See ECF No. 71.)
Pertinently, the Court found that Defendants waived the
defense that Plaintiff failed to exhaust the claim against
Kerner and that material genuine disputes precluded summary
judgment for the same claim. [Id.) In the Motion,
Defendants contend that the Court erred in: (1) issuing the
Order without affording Defendants' the opportunity to
respond to Plaintiff's objection to the R&R (ECF No.
(2) ruling that Defendants waived the failure to exhaust
defense as to the claim against Kerner; and (3) finding that
there is a genuine issue of material fact on the merits of
the claim against Kerner. (See ECF No. 76.) For the
reasons below, the Court will grant Defendants' Motion in
part and deny it in part.
relevant part, Rule 60(b) provides: “On motion and just
terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding
for the following reasons: . . . the judgment is void . . .
or . . . any other reason that justifies relief.”
Fed.R.Civ.P. 60(b)(4) and (6). Motions for reconsideration
should be “used sparingly in the interests of finality
and conservation of judicial resources.” Peterson
v. Miranda, 57 F.Supp.3d 1271, 1275 (D. Nev. 2014)
(internal quotations and citation omitted).
Court will deny the Motion on the issue of exhaustion.
Defendants provide no argument that belies the Court's
legal conclusion on the issue. (See ECF No. 76 at
5-6.) The Court has already considered all arguments
Defendants now present regarding exhaustion and maintains
that it reached the right conclusion based on Reyes v.
Smith, 810 F.3d 654, 657-58 (9th Cir. 2016).
other hand, the Court is persuaded that Plaintiff has failed
to establish a genuine issue of material fact on his claim of
deliberate indifference to serious medical needs against
Kerner. To revisit the issue, the crux of Plaintiff's
deliberate indifference claim is that Kerner delayed his
transport to the hospital-for two hours-trying to get
Plaintiff to admit to consuming narcotics that Kerner assumed
had resulted in Plaintiff having seizures and seizure-like
symptoms. (ECF No. 1-2 at 14-15.) Plaintiff particularly
asserted that Kerner delayed his transport to shout
expletives at Plaintiff and to threaten Plaintiff to confess
even while Plaintiff was convulsing and in restraints.
(Id.) Plaintiff provides that it was only after
medical informed Kerner that Plaintiff was in grave condition
that Kerner told them to take Plaintiff to the hospital.
(Id. at 15.) As noted in the Order, Plaintiff
consistently insisted, including in his relevant second-level
grievance, that /// Kerner's actions were caught on video
recording, although Defendants deny the video having ever
existed. (ECF No. 71 at 12; ECF No. 42-9 at 14; see
also ECF No. 1-2 (Complaint) at 16.)
Motion, Defendants rely heavily on undermining the two-hour
timeframe, arguing that their records establish that only an
hour and seventeen minutes lapsed between when the officers
became aware of Plaintiff's condition and when Plaintiff
was loaded in an ambulance. (ECF No. 76 at 7-8.) Defendants
argue that several things happened during that time:
including medical being notified and arriving at
Plaintiff's cell to examine him, Plaintiff was extracted
from his cell and transported to the infirmary where medical
again examined him and then called an ambulance.
(Id.) Defendants also rightfully point out that the
Court was wrong to have concluded that accepting the dispute
regarding the video, Defendants were obligated to disclose
any video evidence-that should have been retained-under
Fed.R.Civ.P. 26(a)(1) (ECF No. 71 at 12 n.4; ECF No. 76 at 7
n.1). See Fed. R. Civ. P. 26(a)(1)(B)(iv) (excepting
initial disclosures in actions brought by pro se prisoners).
Defendants also highlight that Plaintiff did not otherwise
timely request or subpoena the disputed video evidence.
(See, e.g., ECF No. 80 at 5.)
the Court concludes the timeframe difference alone does not
undermine Plaintiff's claim against Kerner, the Court
finds that the undisputed provision of medical assistance
forecloses the claim. Here, even drawing all inferences to
support Plaintiff's claim of a delayed transport to the
hospital, that Plaintiff continued to receive medical
treatment precludes a claim of deliberate indifference to
serious medical needs-or at minimum falls short of the
threshold to support such a claim. See, e.g.,
Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir.
1990) (“While poor medical treatment will at a certain
point rise to the level of constitutional violation, mere
malpractice, or even gross negligence, does not
suffice.”) There is also no allegation that medical was
obligated to wait for Kerner to finish berating
Plaintiff or to direct medical to call an ambulance before
one was called. Thus, the fact of Plaintiff being delayed for
transport to the hospital-with all inferences drawn in
Plaintiff's favor-seems discrete from Kerner's
Court therefore concludes that Plaintiff cannot survive
summary judgment on his claim of deliberate indifference to
serious medical needs against Kerner.
therefore ordered that the Court's Order (ECF No. 71) is
vacated in part. It is vacated to the extent the Court found
that the merits of Plaintiffs deliberate indifference claim
against Kerner survives summary judgment.
further ordered that Defendants' motion for
reconsideration (ECF No. 76) is granted in part and denied in
part. It is granted regarding the merits of the remaining
claim against Kerner as noted above. It is denied to the
extent Defendants seek reconsideration on the issue of
further ordered that Defendants' motion for summary
judgment (ECF No. 42) is additionally granted on the claim of
deliberate indifference to serious medical needs against
further ordered that Defendants' motions for enlargement
of time (ECF Nos. 75, 79) are granted nunc pro tunc.
further ordered that the minute order referring this case to
settlement (ECF No. 72) is vacated.
Clerk of Court is directed to enter judgment in favor of