United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 50, 61
William G. Cobb, United States Magistrate Judge.
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.
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). 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.
thorough review, it is recommended that Defendants'
motion be granted, and Plaintiff's motion be denied.
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.)
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.)
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) 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
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.
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.
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.
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 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.
DISCUSSION A. FACTS
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.
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.)
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.)
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.)
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. ...