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Silveira v. Nye County

United States District Court, D. Nevada

June 21, 2019

NICHOLAS SILVEIRA, Plaintiffs,
v.
NEY COUNTY, NEVADA, a political subdivision of the State of Nevada; SHERIFF SHARON WEHRLEY; UNDER SHERIFF BRENT MOODY; LIEUTENANT DAVID BORUCHOWITZ; and DOES 1-10, Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Plaintiff Nicholas Silveira brings this action under 42 U.S.C. § 1983 alleging civil rights claims of deliberate indifference under the Fourteenth Amendment of the United States Constitution[1] for purported inadequate medical care he received while a pretrial detainee as well as supplemental state law tort claims. Both Plaintiff and Defendants have filed competing motions for summary judgment on Plaintiff's claims. (ECF Nos. 33, 36, 35 (joinder).) Based on the undisputed facts of this case, the Court finds that Plaintiff fails to sufficiently establish any of his claims and therefore grants summary judgment in favor of Defendants.[2]

         II. BACKGROUND

         The relevant facts are undisputed, unless otherwise noted.

         A. The Parties

         As relevant to this case, Plaintiff was diagnosed with Type II diabetes in 2008. (ECF No. 34-2 at 8.) The events upon which this action is based occurred while Plaintiff was detained in Nye County Detention Center (“NCDC”) for a period of 5 days between January 21 and 26, 2016. (Id.) At the time of his detention Plaintiff was prescribed Levemir and Novolog for his diabetes. (Id. at 9, 17-18.)

         Nye County is a political subdivision of the State of Nevada. It is responsible for hiring Nye County Sheriff's Office (“NCSO”) and NCDC personnel. (ECF No. 34-4 at 3-4.) NSCO is responsible for training its officers. (Id.)

         Defendant Sheriff Sharon Wehrly is the current Sheriff of Nye County and has held the position since January 2015. (Id. at 3.) Defendant Brent Moody was an Undersheriff at the time that Plaintiff was confined to NCDC. (ECF No. 34-2 at 12; ECF No. 34-3 at 4.) Defendant Lieutenant David Boruchowitz was a supervisor at NCDC during the period of Plaintiff's confinement. (ECF No. 34-2 at 12.)

         B. Underlying Facts

         Plaintiff was booked into NCDC at approximately 11:17 p.m. on January 21, 2016. (ECF No. 34-8 at 12.) During booking, Plaintiff informed Boruchowitz that he was diabetic and needed his diabetic medication. (ECF No. 34-2 at 9.) Boruchowitz arranged with dispatch to have Plaintiff's medication delivered to NCDC and they were delivered. (Id. at 10.) Plaintiff also informed Boruchowitz and other NCDC personnel that he needed his blood glucose tested four times each day. (Id. at 10-11.) Plaintiff's doctors had directed him to test his blood glucose four to five times a day. (Id. at 10.) Plaintiff further informed NCDC personnel that he required diabetic meals. (Id. at 11.)

         Plaintiff's medications provided directions on when and in what dosage they should be administered. (Id. at 10.) Additionally, NCDC had the equipment needed to perform the blood glucose testing. (Id. at 11.)

         During Plaintiff's detention, NCDC personnel tested Plaintiff's blood glucose each time they administered Plaintiff's medications-in the morning, and at lunch and dinner. (Id. at 11.) NCDC personnel also compiled with Plaintiff's request to be provided diabetic meals. (Id.) Between the breakfast, lunch, and dinner periods, NCDC personnel also provided Plaintiff with emergency diabetic snacks, such as orange juice and/or sandwiches, when Plaintiff became lightheaded and needed to increase his glucose levels. (Id. at 10-12; ECF No. 34-8 at 43-46.) From January 21, 2016, through January 25, 2015, Plaintiff received his medication, glucose testing, and meals regularly. (Id.; ECF No. 34-2 at 10-11; ECF No. 34-8 at 12-33. (jail logs).)[3]

         At his deposition, Plaintiff testified that on the night of January 25, 2016, he asked a NCDC deputy to test his blood glucose before bed because he was feeling lightheaded. (ECF No. 34-2 at 11, 16.) Plaintiff stated that the deputy told him he could not do the test at that time because he was busy conducting head count of the inmates and indicated that Plaintiff being lightheaded was not his problem (Id.) Plaintiff affirmed having no knowledge whether the deputy ask anyone else to check his blood glucose. (Id. at 16.) The deputy is not a named Defendant in this lawsuit. Plaintiff also confirmed that he “didn't believe” there were any other instances where NCDC personnel did not respond to his requests. (Id.)

         According to NCDC logs, on January 26, 2016, Plaintiff's blood glucose was tested around 8:00 a.m. and Plaintiff was provided 60 units of Novolog and 100 units of Levemir. (ECF No. 34-8 at 35.) The log reflects that Plaintiff's blood glucose was checked again around 1 p.m. (Id. at 36) However, Plaintiff was later found unresponsive in his bed before 5:00 p.m. and NCSO personnel called paramedics to NCDC. (Id. at 37; ECF No. 39-6 at 2, 4.) Paramedics arrived within roughly six minutes after the call was made and Plaintiff was transported to Desert View Hospital in Pahrump, NV (“DVH”). (ECF No. 34-8 at 46; ECF No. 34-2 at 18.)

         Plaintiff's mother posted bail and Plaintiff was officially released from NCDC while he was at DVH. (ECF No. 34-2 at 7, 14-15; ECF No. 34-8 at 46.) Plaintiff was transferred from DVH by life flight to University Medical Center ("UMC"), where he remained in a diabetic coma for two and a half days and stayed six days in entirety. (ECF No. 34-2 at 18.)

         C. Complaint and Briefs

         In his Complaint, Plaintiff alleges the following four claims for relief: (1) deliberate indifference based on in adequate medical care under the Fourteenth Amendment; (2) deliberately indifferent policies, practices, habits, and customs; (3) negligence; and (4) respondeat superior. (ECF No. 3 at 15-22.) Plaintiff seeks various forms of compensatory damages. (Id. at 22.)

         Nye County, Wehrly and Moody moved for summary judgment on all claims against them. (ECF No. 33.) Boruchowitz filed a joinder to that motion the following day. (ECF No. 35.) Plaintiff filed his own motion for summary judgment-which amounts to a cross-motion-that same day (ECF No. 36) and Defendants responded (ECF No. 37, 38 (Boruchowitz's joinder)).[4]

         III. LEGAL STANDARD

         "The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric, 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff's ...


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