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Johnston v. Gedney

United States District Court, D. Nevada

October 8, 2019

RICHARD JOHNSTON, Plaintiff
v.
KAREN GEDNEY, Defendants

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 50, 61

          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. 50, 52, 52-1 to 52-4.) Plaintiff filed a response (ECF No. 60), and Counter-Motion for Summary Judgment (ECF No. 61).[1] Defendants filed a reply in support of their motion (ECF No. 67), and response to Plaintiff's motion (ECF No. 68). Plaintiff filed a reply in support of his motion. (ECF No. 72.) Plaintiff was granted leave to file a sur-reply in response to Defendants' reply. (ECF No. 74.) The sur-reply is filed at ECF No. 81.

         After a thorough review, it is recommended that Defendants' motion be granted, and Plaintiff's motion be denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 4.) The events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). (Id.) Defendants are Dr. Karen Gedney and Dr. Romeo Aranas. (Screening Order, ECF No. 3.)

         On screening, Plaintiff was allowed to proceed with an Eighth Amendment claim of deliberate indifference to his serious medical needs based on allegations that Defendants failed to adequately treat his back issues. (ECF No. 3.)

         Specifically, Plaintiff alleges that he suffered severe work-related back and head injuries prior to his incarceration that have progressively worsened during incarceration. In March of 2014, Plaintiff was sent to NNCC to be evaluated by NDOC's orthopedic specialist and NNCC physicians after seeking treatment for his back pain. Dr. Marsha Johns (who is not a defendant in this action)[2] referred him to Dr. Richard Long (also not a defendant), the orthopedic specialist, who ordered an MRI of his lower back. Plaintiff explained his prior treatment with his pain specialist, pain medications and epidural injections to Dr. Long. Plaintiff claims Dr. Long refused to acknowledge that the epidural injections he received prior to incarceration were effective, despite his medical records indicating they were. In June of 2014, Plaintiff received an MRI, but he alleges NNCC physicians refused to provide him with the results, despite numerous requests. Further, Plaintiff alleges no treatment was provided.

         Plaintiff submitted medical kites to Dr. Gedney and Dr. Johns for the results of the June 2014 MRI. On February 11, 2016, Dr. Gedney called Plaintiff to the NNCC clinic to read him the results. Plaintiff alleges that Dr. Gedney told him that the deterioration of his lower lumbar spine had progressively worsened, but Plaintiff claims she refused to refer him to a pain management specialist or a back specialist for treatment. Dr. Gedney also informed Plaintiff that his medications for leg cramps and sleep were not helping. Dr. Gedney told him he was scheduled for a second MRI, but there was a wait list. He had the second MRI on June 16, 2016, but was not advised of the results. In September and October of 2016, he was scheduled to see Dr. Martin Naughton of NNCC, who advised Plaintiff he was scheduled to receive epidural injections for his back pain, but he did not receive them.

         Plaintiff alleges that Dr. Gedney denied him adequate treatment for his back, and Dr. Aranas was advised of his requests for his MRI results and treatment through grievances, but denied them.

         Defendants move for summary judgment, arguing that they were not deliberately indifferent to Plaintiff's serious medical needs, and alternatively, that they are entitled to qualified immunity. In his counter-motion, Plaintiff argues that Defendants were deliberately indifferent in denying and delaying treatment for his back.

         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 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.

         III. DISCUSSION A. FACTS

         Plaintiff injured his lower back in 2000 or 2001; was evaluated by medical providers outside of prison; an MRI was performed in 2003; he was placed on full disability in 2005 for his back injury; and, was incarcerated in 2006.

         On January 6, 2014, a referral was made for an epidural injection from Dr. John Van Horn. (ECF No. 52-1.) At that time, Plaintiff was being prescribed Flexeril, Prednisone and Neurontin. (ECF No. 52-2 at 9.) On January 21, 2014, it was determined that Plaintiff should be transferred to NNCC to see Dr. Long for a second opinion. (ECF No. 52-1 at 22; ECF No. 52-2 at 8.)

         Plaintiff saw Dr. Long on February 19, 2014. Plaintiff reported an industrial injury in 2000 resulting in low back pain, which resulted in his placement on full disability in 2005. His back remained stable, with aches, numbness and tingling down both lower extremities for a number of years, but in 2013, he began to have increasing pain that would interfere with his sleep. He could only walk about two blocks before he had increasing numbness and tingling. On examination, he was described as moving well, and he had no overt tenderness in the low back. He was assessed with progressive low back pain, with bilateral lower limb pain, numbness and tingling since his injury in 2001. Dr. Long thought this was most likely spinal stenosis. His neurologic examination was unremarkable except for decreased sensation in the anterior thighs and limited motion. He had satisfactory strength, but no endurance secondary to the spinal stenosis. He was "starting to become very miserable." (ECF No. 52-1 at 20.) He was taking Flexeril and Neurontin. Dr. Long recommended an MRI, as he suspected significant spinal stenosis, and asked to see Plaintiff back after the MRI. (ECF No. 52-1 at 21.)

         Dr. Johns referred Plaintiff for an MRI of the lumbar spine on March 5, 2014, which was authorized on March 11, 2014, and an appointment was made and then rescheduled for April 8, 2014. (ECF No. 52-1 at 18.) Plaintiff was seen on March 26, 2014, and it was noted that the MRI had been rescheduled for an open scanner, and he was to be given Ativan. Other notes suggest this was due to claustrophobia. (ECF No. 52-2 at 8.) The MRI was performed on April 8, 2014. It revealed multilevel degenerative spondylosis; no significant spinal canal stenosis; narrowing of the bilateral lateral recesses at ¶ 3-4 and the right lateral recess at ¶ 4-5 without frank nerve root entrapment; the exiting right L4 nerve root is contacted by marginal disc material without impingement. (ECF No. 52-4 at 7-8.)

         Plaintiff was seen on May 29, 2014, with complaints of chronic back pain. It was noted the MRI had been done. (ECF No. 52-3 at 8.) A referral to see Dr. Long was submitted by Dr. Johns on May 29, 2014. (ECF No. 52-1 at 17.) On July 1, 2014, there is a notation that Plaintiff's Neurontin was to be changed to 600 mg, and the Flexeril to 10 mg. (ECF No. 52-2 at 8.) On July 29, 2014, Dr. Johns noted that the right form was submitted for the second mattress; Plaintiff was to be scheduled with Dr. ...


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