United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 32
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
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
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.
thorough review, it is recommended that Defendant's
motion be granted.
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
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.)
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.
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.
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.
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.
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). 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 ...