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Merry v. Sandoval

United States District Court, D. Nevada

June 10, 2019

DANIEL V. MERRY, Plaintiff
v.
BRIAN SANDOVAL, et. al., Defendants

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 58

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Before 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 response.

         After a thorough review, it is recommended that Defendants' motion be granted.

         I. BACKGROUND

         Plaintiff 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.)

         The 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.

         First, 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.

         Second, 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.[1] 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 No. 32.)

         Defendants 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.

         II. LEGAL STANDARD

         “The 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).

         In 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.

         In 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 (1986).

         If the 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.

         At 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).

         III. DISCUSSION

         A. Statute of Limitations

         Section 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).

         “A 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 omitted).

         Federal 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[.]”).

         Defendants 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 2016, ...


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