Antonetti v. Neven et al

Filing 80

ORDER denying Defendants' 64 Motion for Summary Judgment and denying Plaintiff's 70 Motion for Reconsideration. Signed by Judge Kent J. Dawson on 8/9/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH ANTONETTI,

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Plaintiff,

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v.

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DWIGHT NEVEN, et al.,

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Case No. 2:08-CV-01020-KJD-VCF

Defendants.

ORDER

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Presently before the Court is Defendants’ Motion for Summary Judgment (#64). Plaintiff

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filed a response in opposition (#71) to which Defendants replied (#74). Also before the Court is

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Plaintiff’s Motion for Reconsideration (#70). Defendants filed a response in opposition (#72) to

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which Plaintiff replied (#73).

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I. Background

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Plaintiff filed his initial complaint and application to proceed in forma pauperis on August 7,

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2008. The magistrate judge approved Plaintiff’s application on September 4, 2008 and reserved

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screening of Plaintiff’s initial complaint. On December 22, 2008, Plaintiff filed a Motion for Leave

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to File Amended Complaint (#5). On September 16, 2009, the magistrate judge granted Plaintiff’s

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motion to amend, screened Plaintiff’s proposed amended complaint and ordered it filed. The

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magistrate properly disposed of several claims in the amended complaint and the Court denied (#23)

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Plaintiff’s motion for reconsideration of that action on May 17, 2010.

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On September 27, 2010, the Court granted in part and denied in part (#24) Defendants’

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Motion to Dismiss. That order dismissed all of Plaintiff’s claims other than his dental claims,

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exercise claims, and food claims. On September 28, 2011, the Court ruled (#43) on a subsequent

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motion for summary judgment dismissing all claims except Plaintiff’s dental claims. On April 16,

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2012, the Court denied (#63) Plaintiff’s motion to amend. Defendants have now moved for summary

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judgment on Plaintiff’s dental claims. Plaintiff has moved for reconsideration of the order denying

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his motion to amend the complaint.

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II. Motion for Summary Judgment

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Plaintiff has been seeking dental care (specifically to have cavities filled) since at least March

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2007. Plaintiff asserts, and it has not been controverted, that as of April 23, 2012, his cavities have

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still not been treated. Defendants have moved for summary judgment on these claims, alternately

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asserting that prison employees who processed Plaintiff’s grievances complaining that he wasn’t

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being treated can’t override the responses of medical professionals and then asserting that the

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medical professionals can’t be held liable for a delay in treatment, because Plaintiff wasn’t being

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transported to them by prison employees for treatment. Defendants essentially argue that no one can

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be liable for the delay in Plaintiff’s treatment, because “someone else” is always at fault.

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The Court has already held that qualified immunity does not protect Defendants because they

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should know that delay in treatment is illegal. Plaintiff has raised sufficient questions of fact staving

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off summary judgment against these Defendants. Defendants were aware that Plaintiff’s treatment

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was being delayed, but no one took action to see that Plaintiff was adequately evaluated and treated.

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The question of liability and the degree of responsibility for damages must be resolved by a finder of

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fact. Therefore, the Court denies the motion for summary judgment.

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III. Motion to Reconsider
Here, Plaintiff asserts that the Court must reconsider its denial of his motion to amend the

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complaint. Plaintiff argues that he was unable to identify some proposed defendants until discovery

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was complete. However, the Court considered that fact when it denied the motion to amend.

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Specifically, the Court found that Plaintiff hadn’t met his burden in showing which facts applying to

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which defendants were unavailable to him until discovery had been completed. Plaintiff’s motion for

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reconsideration failed to address these facts, even after the Court’s order denying the motion to

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amend pointed out his failure.

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Plaintiff’s motion for reconsideration essentially reargues his original position in the motion

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to amend. The Court did not commit clear error and does not have a definite and firm conviction that

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it erred in its previous order denying the motion to amend. Accordingly, the motion for

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reconsideration is denied.

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IV. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment
(#64) is DENIED;

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Reconsideration (#70) is DENIED.

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DATED this 9th day of August 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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