United States District Court, D. Nevada
DANIEL V. MERRY, Plaintiff
BRIAN SANDOVAL, et. al., Defendants
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 58
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, United States District Judge. The action was referred to
the undersigned Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.
the court is Defendants' Motion for Summary Judgment.
(ECF Nos. 58, 58-1 to 58-17, ECF No. 60-1 to 60-15.)
Plaintiff was given an initial extension of time until
February 18, 2019, to file his response. (ECF Nos. 64, 67.)
As of February 27, 2019, Plaintiff had still not filed a
response, and the court granted Plaintiff a second extension,
until March 19, 2019, to file a response. (ECF No. 69.) On
March 1, 2019, Plaintiff filed a motion for appointment of
counsel. (ECF No. 70.) The court denied the motion, but gave
Plaintiff one additional extension of time, until April 22,
2019, to file a response to Defendants' motion for
summary judgment. The court advised Plaintiff there would be
no further extensions granted barring unforeseen and
extenuating circumstances. (ECF No. 71.) As of the date of
this Report and Recommendation, Plaintiff has not filed a
thorough review, it is recommended that Defendants'
motion be granted.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC). When he filed his original and first
amended civil rights complaints under 42 U.S.C. § 1983,
he was proceeding pro se. (ECF Nos. 4, 7.) He was then
represented by Dan Winder, Esq. (ECF No. 12.) Represented by
counsel, he filed his Second Amended Complaint (SAC) on
October 16, 2017. (ECF No. 32.) Mr. Winder subsequently filed
a motion to withdraw as counsel, which the court granted.
(ECF Nos. 62, 67.)
events giving rise to this action took place while Plaintiff
was housed at Northern Nevada Correctional Center (NNCC),
though he is now housed at Lovelock Correctional Center
(LCC). Defendants are Dr. Karen Gedney, Dr. Marsha Johns, Dr.
David Mar, and Caseworker Irvin. Plaintiff alleges that
Defendants were deliberately indifferent to his serious
medical need in violation of the Eighth Amendment.
Plaintiff alleges that he had previously had neck surgery in
2006 and was assigned to lower bunks because of the injuries
and instability of his neck. Plaintiff contends that
defendant Irvin knew that Plaintiff had a medical condition
that required he not be placed in an upper bunk. Shortly
prior to July of 2012, Plaintiff avers that Irvin acted with
deliberate indifference when she assigned Plaintiff to a top
bunk, saying: "Tell someone who cares." Plaintiff
fell from the top bunk in July 2012, causing further injury
to his cervical spine.
Plaintiff alleges that Drs. Gedney, Mar and Johns knew of the
pain and suffering Plaintiff had from the time of the fall
from the upper bunk in July 2012 and denied him timely access
to neurosurgery, adequate pain management and physical
therapy. (ECF No. 32.) In particular, he alleges that he sent
a kite to Dr. Gedney on July 22, 2012, which Dr. Gedney
ignored for approximately four months until he was allowed to
see a neurosurgeon, Dr. Dante Vacca in
November. Plaintiff alleges that he saw Dr. Vacca
again in February and March of 2013, and Dr. Vacca
recommended surgery in March of 2013. Plaintiff goes on to
allege that Dr. Gedney delayed the surgery for a year and
four months. Finally, in April of 2014, he had surgery. In
December of 2014, Plaintiff alleges that he was referred to a
pain specialist, Dr. Black, but Dr. Gedney, Dr. Mar and Dr.
Johns ignored his recommendations for pain management. (ECF
move for summary judgment, arguing: (1) Plaintiff's
claims are barred by the statute of limitations; (2)
Plaintiff failed to properly exhaust his administrative
remedies; (3) Plaintiff's Eighth Amendment rights were
not violated; (4) Irvin did not personally participate in the
alleged constitutional violation because she did not have
authority to medically restrict Plaintiff to a bottom bunk;
and (5) Defendants are entitled to qualified immunity.
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Northwest Motorcycle Ass'n v. U.S.
Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994)
(citation omitted). In considering a motion for summary
judgment, all reasonable inferences are drawn in favor of the
non-moving party. In re Slatkin, 525 F.3d 805, 810
(9th Cir. 2008) (citation omitted). “The court shall
grant summary judgment if 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). On the other hand, where reasonable minds could differ
on the material facts at issue, summary judgment is not
appropriate. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
evaluating whether or not summary judgment is appropriate,
three steps are necessary: (1) determining whether a fact is
material; (2) determining whether there is a genuine dispute
as to a material fact; and (3) considering the evidence in
light of the appropriate standard of proof. See
Anderson, 477 U.S. at 248-50. As to materiality, 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 which are irrelevant or
unnecessary will not be considered. Id. at 248.
deciding a motion for summary judgment, the court applies a
burden-shifting analysis. “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.'… In such a case, the moving party has
the initial burden of establishing the absence of a genuine
[dispute] of fact on each issue material to its case.”
C.A.R. Transp. Brokerage Co. v. Darden Rest., Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (internal citations
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 cannot
establish an element essential to that party's case on
which that party will have the burden of proof at trial.
See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25
moving party satisfies its initial burden, the burden shifts
to the opposing party to establish that a genuine dispute
exists as to a material fact. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
opposing party need not establish a genuine dispute of
material 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 truth at trial.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) (quotation marks and citation omitted). “Where
the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no
‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted). The
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations that are unsupported by
factual data. Id. 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 dispute of material fact for trial.
Celotex, 477 U.S. at 324.
summary judgment, the court's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine dispute of material fact for trial.
See Anderson, 477 U.S. at 249. While the evidence of
the nonmoving party is “to be believed, and all
justifiable inferences are to be drawn in its favor, ”
if the evidence of the nonmoving party is merely colorable or
is not significantly probative, summary judgment may be
granted. Id. at 249-50 (citations omitted).
Statute of Limitations
1983 does not contain its own statute of limitations;
therefore, federal courts borrow the statute of limitations
for section 1983 claims applicable to personal injury claims
in the forum state. See Wilson v. Garcia, 471 U.S.
261, 279-80 (1985); Pouncil v. Tilton, 704 F.3d 568,
573 (9th Cir. 2012). In Nevada, the statute of limitations
for personal injury claims, and therefore section 1983
actions brought here, is two years. Nev. Rev. Stat.
11.190(4)(e); see also Perez v. Seevers, 869 F.2d
425, 426 (9th Cir. 1989).
statute of limitations begins to run on the date on which the
plaintiff's claim ‘accrues.'”
Pouncil, 704 F.3d at 573 (citation omitted).
“Federal law determines when a cause of action for a
Section 1983 claim accrues and, hence, when the statute of
limitations begins to run.” Id. (citation
omitted). Under federal law, a claim accrues “when the
plaintiff knows or has reason to know of the injury that is
the basis of the action.” Id. at 574 (citation
courts apply the forum state's law regarding tolling,
including equitable tolling, when not inconsistent with
federal law, to civil rights claims filed under section 1983.
Johnson v. State of Cal., 207 F.3d 650, 653 (9th
Cir. 2000) (citations omitted). “[T]he applicable
statute of limitations must be tolled while a prisoner
completes the mandatory exhaustion process.” Brown
v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005)
(citations omitted); see also Soto v. Sweetman, 882
F.3d 865 (9th Cir. 2018), cert. denied, 139 S.Ct.
480 (Nov. 13, 2018) (inmate is “entitled to tolling
while … actively exhausting his remedies[.]”).
argue that Plaintiff's claims stem from a single incident
in July of 2012, and was not a continuing violation;
therefore, since Plaintiff filed his complaint in March of