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Milano v. Vital

United States District Court, D. Nevada

October 8, 2019

ANTHONY MICHAEL MILANO, Plaintiff
v.
MARIAFE VITAL, Defendant

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 32

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Robert C. Jones, 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 Defendant's Motion for Summary Judgment. (ECF Nos. 32, 32-1 to 32-3, 34, 34-1 to 34-6.) Plaintiff filed a response. (ECF No. 37.) Defendant filed a reply. (ECF No. 38.) Plaintiff filed a sur-reply. (ECF No. 39.)[1]

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

         I. BACKGROUND

         Plaintiff was an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se when he filed this action pursuant to 42 U.S.C. § 1983. At the time the court screened the complaint, he was no longer incarcerated. The events giving rise to this action took place while Plaintiff was housed at High Desert State Prison (HDSP). (Id.) The sole defendant is former HDSP Nurse Mariafe Vital.

         On screening, Plaintiff was allowed to proceed with a single Eighth Amendment claim of deliberate indifference to a serious medical need. (ECF No. 5.) The defendant was initially named as Jane Doe, and subsequently identified and substituted as Mariafe Vital. (ECF Nos. 8, 9.)

         Plaintiff alleges that he entered the custody of NDOC at HDSP on July 2, 2015, and that same day, he called a "man down" because he started vomiting, experienced vertigo and double vision, and was unable to control his bowel movements. He avers that prison officials admitted him to the infirmary. On July 20, 2015, he was sent to Valley Hospital and was diagnosed with multiple sclerosis (MS). Then, from October 2015 to November 2015, Plaintiff again started vomiting, experiencing vertigo and double vision, and was unable to control his bowel movements. He had to wait 45 days before seeing a neurologist who provided MS treatment. After the treatment, his symptoms subsided. He avers that during that time period, he put Defendant on notice he was suffering from these symptoms via formal and informal means of communication, including emergency grievance forms, medical kites, and verbally. He contends that Defendant failed to provide him with any treatment and told Plaintiff there was nothing she could do. He alleges that he suffered from unnecessary infliction of pain due to her failure to provide him with any treatment.

         Defendant moves for summary judgment, arguing: (1) Plaintiff's Eighth Amendment rights were not violated as he received appropriate treatment after arriving at HDSP; (2) Defendant did not personally participate in the alleged constitutional violation as there is no evidence she denied Plaintiff medical care in any way, but requested a neurology appointment for Plaintiff as soon as he returned from the hospital with the MS diagnosis; and (3) Defendant is entitled to qualified immunity.

         II. LEGAL STANDARD

         The legal standard governing this motion is well settled: a party is entitled to summary judgment when “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P. 56(c)). An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248 (disputes over facts that might affect the outcome will preclude summary judgment, but factual disputes which are irrelevant or unnecessary are not considered). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. Anderson, 477 U.S. at 250.

         “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); see also Celotex, 477 U.S. at 323-24 (purpose of summary judgment is "to isolate and dispose of factually unsupported claims"); Anderson, 477 U.S. at 252 (purpose of summary judgment is to determine whether a case "is so one-sided that one party must prevail as a matter of law"). In considering a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). That being said, "if the evidence of the nonmoving party "is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250 (citations omitted). The court's function is not to weigh the evidence and determine the truth or to make credibility determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249.

         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). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Matsushita, 475 U.S. at 587. Instead, the ...


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