United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 53, 61
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 Defendants' Motion for Summary Judgment.
(ECF Nos. 53, 53-1.) Plaintiff filed a response. (ECF No.
55.) Defendants filed a reply. (ECF No. 58.) Despite
previously filing a response to the motion for summary
judgment, Plaintiff subsequently filed a motion "made to
oppose the defendant's motion for summary judgment"
where he seeks an order denying Defendants' motion. (ECF
No. 61.) Defendants filed a response to that document. (ECF
thorough review, it is recommended that Defendants'
motion be granted, and that Plaintiff's motion for an
order denying Defendants' motion be denied.
filed his pro se civil rights complaint under 42 U.S.C.
§ 1983, Plaintiff was an inmate in the custody of the
Nevada Department of Corrections (NDOC), but the events
giving rise to this action took place while he was a pretrial
detainee at the Washoe County Detention Facility (WCDF). (Am.
Compl., ECF No. 37.) He was housed at various facilities
within NDOC, and according to NDOC's online offender
database was paroled, and then recently filed a notice of
change of address indicating he is currently housed at the
WCDF again. Defendants are Jimmy Groves, LPN; Sandra
Boxx-Fontes, LPN; Suzanna Goodman-Fisler, LPN; and Eloy
screening, Plaintiff was allowed to proceed with a Fourteenth
Amendment due process claim of inadequate medical care by a
pretrial detainee. All other claims were dismissed. (ECF No.
alleges that on May 15, 2017, he was bit by a snake while at
a friend's home, but was not concerned because the snake
was not poisonous. On May 17, 2017, he awoke in his hotel
room at the Sands Casino and his hand was swollen to the size
of a baseball. He was concerned about his hand, and decided
to seek medical treatment at a hospital. On his way, an
officer stopped him for illegally crossing the street. He had
a warrant out for probation violations, and he was arrested
and taken to WCDF. He alleges that he informed medical staff
on his arrival of his swollen hand. He avers that a WCDF
employee said she could not do anything for him, and he would
have to file a kite to receive medical treatment. He
continued to complain about his swollen hand, but alleges
that he received no medical attention.
week of being in pain and not being scheduled to see a
healthcare provider, he resorted to threats of suicide to
seek medical treatment. He expressed concern that the
swelling was getting worse, but nursing staff stated he had
not been bitten by a snake. Nurses Sandra Boxx-Fontes and
Suzanna Goodman-Fisler treated him with hand soaks and
Silvadene cream. Nurse Jimmie Groves also treated him for his
swollen hand. His hand condition continued to deteriorate,
and at this point he asked to be taken to a hospital or to
see an orthopedic doctor.
saw Dr. Ituarte, who took him off penicillin and prescribed
Tramadol. Plaintiff asked Dr. Ituarte if he needed to go to
the hospital, and Dr. Ituarte said no, we will just keep it
clean with day to day hand soaks and new hand wraps.
was transferred to the custody of NDOC on June 14, 2017. He
was seen by medical staff for his swollen hand, and was
rushed to the hospital where he had his thumb amputated from
the first knuckle to the nail. He asserts he was placed on
antibiotics to keep him from losing his entire thumb, and
also sustained permanent nerve damage in the infected area.
move for summary judgment, arguing that they did not violate
Plaintiffs Fourteenth Amendment rights because they provided
Plaintiff with objectively reasonable and adequate medical
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.