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Gates v. Poag

United States District Court, D. Nevada

September 23, 2019

RICHARD R. GATES, Plaintiff,
D. POAG, et al., Defendants.



         I. SUMMARY

         Pro se Plaintiff Richard R. Gates, currently incarcerated and in the custody of the Nevada Department of Corrections (“NDOC”), alleges violations of his Eighth Amendment right to be free from cruel and unusual punishment under 42 U.S.C. § 1983 against correctional facility medical officials generally arising from his contention that he was not permitted to refill his inhaler prescription sufficiently frequently. (ECF No. 5.) Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge Carla B. Carry (ECF No. 48), recommending that the Court grant Defendants’ case-dispositive summary judgment motion (ECF No. 38) because Defendants did not personally participate in the alleged constitutional violations. Plaintiff filed an objection to Judge Carry’s Recommendation.[1] (ECF No. 49.) As further explained below, the Court will overrule Plaintiff’s objection because the Court agrees with Judge Carry’s analysis of the underlying summary judgment motion, and will fully adopt the R&R, resolving this case in Defendants’ favor.


         The Court incorporates by reference Judge Carry’s recitation of the factual background of this case (ECF No. 48 at 1-4), and does not recite it here. As relevant to Plaintiff’s objection, Judge Carry recommends granting summary judgment to Defendants Romeo Aranas and Don Poag because they did not personally participate in Plaintiff’s alleged constitutional violations. (Id. at 6-10.) Notably, Judge Carry found undisputed the fact that Plaintiff received the inhaler prescription refill he requested in January 2015- before either Poag or Aranas responded to his grievance requesting that his inhaler prescription be refilled. (Id. at 9.) She pointed in pertinent part to a declaration Plaintiff filed with his response to Defendants’ motion for summary judgment, where Plaintiff listed the following facts as undisputed:

Fact 30: The Xopenex Inhaler was refilled in January of 2015
Fact 31: I was forced to refuse the Xopenex Inhaler in January of 2015 because of legal issues of mootness were now attached.

(Id. (citing ECF No. 43 at 10).) Judge Carry goes on to determine that Defendants did not know about Plaintiff’s alleged constitutional violations until after they were remedied. (Id.) As such, Judge Carry found “that after-the-fact knowledge of an alleged constitutional violation, which was already remedied, cannot rise to the level of participation required for a § 1983 suit.” (Id.)


         A. Review of the Magistrate Judge’s Recommendation

          This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge’s report and recommendation, then the Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” Id. Because of Plaintiff’s objection to the R&R, the Court has undertaken a de novo review of it, including the underlying briefs.

         B. Summary Judgment 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 there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (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, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See Id . at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. See 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., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita ...

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