Clemons v. Hayes et al

Filing 36

ORDER Granting in part 31 Motion to Stay and Denying 33 Motion to Strike. The Hearing that is scheduled for 5/27/2011 at 9:30 a.m. is vacated. Signed by Magistrate Judge George Foley, Jr on 5/26/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DE’MARIAN CLEMONS,

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Plaintiff,
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vs.
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ROBERT CLINTON HAYES, et al.,
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Defendants. )
__________________________________________)

Case No. 2:10-cv-01163-KJD-GWF
ORDER
Motion to Stay (#31) and
Motion to Strike (#33)

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This matter is before the Court on Defendants Elizabeth L. Acevedo’s Motion to Stay

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Discovery in Light of the Pending Motion to Dismiss, or, in the Alternative, Motion to Extend All

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Discovery Deadlines for an Additional 120 Days (#31), filed April 27, 2011, and Plaintiff’s

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Motion to Strike All Portions of the Defendants Reply to Plaintiff’s Complaint Under Fed. Rule

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of Civil Procedure 60(a) (#33), filed May 12, 2011.

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On October 27, 2010, Plaintiff filed his complaint, which alleges that Defendant Elizabeth

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Acevedo violated his Eighth Amendment rights in her capacity as a nurse at Clark County

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Detention Center (“CCDC”).1 (#5). Plaintiff De’Marian Clemons alleges that he fell and hit his

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head on his cell floor on September 12, 2009 after he allegedly passed out due to low blood

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pressure. (Id.) When Nurse Acevedo was informed about the incident, she allegedly refused to

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respond to or to report the incident. (Id.) Instead, Acevedo allegedly told officers at CCDC that

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Clemons just needed some fresh air and that she had checked his blood pressure earlier. (Id.)

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Acevedo allegedly failed to assess Plaintiff’s vital signs after the incident, and because she did not

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report the incident, Plaintiff did not receive medical attention for three days. (Id.) Clemons

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The complaint included additional claims against Nurse Acevedo, but the Court dismissed
all claims asserted against Acevedo except for the Eighth Amendment claim stated in Count VII.
(See #4).

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claims that since the incident he has suffered from headaches, dizziness and mental anguish. (Id.)

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Based on these allegations, Plaintiff filed claims against Acevedo for 1) medical

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malpractice/negligence, 2) violation of the physician-patient privilege and 3) violation of the

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Eighth Amendment protection from cruel and unusual punishment. (#5 at 11).

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DISCUSSION

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Defendant Acevedo moves to stay all discovery in this case pending the decision on her

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motion to dismiss (#18). Previous published decisions in this district have addressed the standard

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to be applied in deciding whether to stay discovery pending a decision on a potentially dispositive

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motion. In Turner Broadcasting System, Inc. v. Tracinda Corp., 175 F.R.D. 554, 555-6 (D.Nev.

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1997), the court, quoting Twin City Fire Ins. v. Employers Insurance of Wausau, 124 F.R.D. 652,

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653 (D.Nev. 1989), stated:

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To show good cause in the Ninth Circuit, the moving party must
show more than an apparently meritorious 12(b)(6) claim: “A
district court may ... stay discovery when it is convinced that the
plaintiff will be unable to state a claim for relief.” Wood v.
McEwen, 644 F.2d 797, 801 (9th Cir.1981), cert denied, 455 U.S.
942, 102 S.Ct. 1437, 71 L.Ed.2d 654 (1982); B.R.S. Land Investors
v. United States, 596 F.2d 353 (9th Cir.1979). (emphasis added).

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***
Finally, a pending Motion to Dismiss is not ordinarily a situation
that in and of itself would warrant a stay of discovery. Common
examples of such situations, however, occur when jurisdiction,
venue, or immunity are preliminary issues. (citation omitted)

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Turner Broadcasting further stated:

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“A party seeking a stay of discovery carries the heavy burden of
making a ‘strong showing’ why discovery should be denied.
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975).”
Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D.Cal. 1990).

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“The intention of a party to move for judgment on the pleadings is
not ordinarily sufficient to justify a stay of discovery. 4 J. Moore,
Federal Practice § 26.70[2], at 461.” Id. Where a party claims that
dismissal is likely, it requires the Court to make a preliminary
finding of the likelihood of success on the motion. This would
circumvent the procedures for the resolution of such a motion. Id.
Such a stay might be appropriate where the complaint was utterly
frivolous, or filed merely for settlement value. Id. Such does not
appear to be the case here.

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Federal district courts in the Eastern and Northern Districts of California apply a two-part

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test in evaluating whether discovery should be stayed. First, the pending motion must be

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potentially dispositive of the entire case, or at least dispositive on the issue at which discovery is

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aimed. Second, the court must determine whether the pending, potentially dispositive motion can

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be decided absent additional discovery. If the moving party satisfies these two prongs, the court

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may issue a protective order. Discovery should proceed if either prong of the test is not met.

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Mlejnecky v. Olympus Imaging America, Inc., 2011 WL 489743, *6 (E.D.Cal. 2011), citing other

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decisions applying the two-part test or variations thereof.

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The court in Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 2011 WL

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130228, *4 (E.D.Cal. 2011), states that in applying the two-part test, it must take a “peek” at the

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merits of the pending motion in order to assess the validity of the stay of discovery motion. A

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merely colorable defense usually will not qualify to stay discovery. Generally, there must be no

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question in the court’s mind that the dispositive motion will prevail, and therefore, discovery is a

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waste of effort. Absent extraordinary circumstances, litigation should not be delayed simply

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because a non-frivolous motion has been filed. This view is consistent with Turner Broadcasting

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System, Inc. v. Tracinda Corp. and Twin City Fire Ins. v. Employers Insurance of Wausau.

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Some federal courts apply a more lenient standard in deciding whether discovery should

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be stayed pending a decision on a potentially dispositive motion. In GTE Wireless, Inc. v.

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Qualcomm, Inc., 192 F.R.D. 284, 286 (S.D.Cal. 2000), the district court adopted the test set forth

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in Feldman v. Flood, 176 F.R.D. 651, 652 (M.D.Fla. 1997), which states that the court should

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take a preliminary peek at the merits of the allegedly dispositive motion “to see if on its face there

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appears to be an immediate and clear possibility that it will be granted.” Ameritel Inns v. Mofat

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Bros. Plastering, L.C., 2007 WL 1792323, *4 (D. Idaho 2007) states a clear possibility of success

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means that “Defendant’s motion is nearly below but does not necessarily exceed a ‘fifty percent

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chance’ of success.” Other district courts have suggested that a stay of discovery may be granted

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where the potentially dispositive motion “‘appears to be not unfounded in the law.’” Brooks v.

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Macy’s, Inc., 2010 WL 5297756, *2 (S.D.N.Y. 2010).

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While a more lenient standard may avoid the burden and expense of discovery in cases

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that are ultimately dismissed on the pleadings, this Court concludes that it should continue to

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abide by the stricter standard set forth in Turner Broadcasting and Twin City, supra. First, these

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decisions are consistent with long standing Ninth Circuit case law and have not been rejected or

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modified by other judges in this District. Second, as the court in Gray v. First Winthrop

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Corporation, 133 F.R.D. 39, 40 (N.D.Cal. 1990) stated, motions to dismiss are a frequent part of

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federal practice. In the post Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)

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era, this statement is even more true. An overly lenient standard for granting motions to stay all

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discovery is likely to result in unnecessary discovery delay in many cases. This is particularly true

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where no discovery requests have yet been served and the court lacks the ability to assess the

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breadth of the discovery and the prejudice, if any, that a defendant will suffer in responding to the

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requests. See Brooks v. Macy’s, Inc. at *2. This Court also believes that the two-part test applied

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in the Eastern and Northern Districts of California provides the appropriate framework for

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deciding motions to stay discovery pending the decision on a motion to dismiss or similar motion.

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Therefore, the Court will examine the merits of Defendant’s motion to dismiss (#18) in
order to assess the validity of the stay of discovery motion.

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1.

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Acevedo argues that Plaintiff’s state law medical malpractice claim is barred because

Medical Malpractice / Negligence

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Plaintiff failed to attach an affidavit from a medical expert to his complaint as required by NRS

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41A.071. (#18 at 4). The Nevada Supreme Court held in Borger v. Eighth Judicial Dist. Court

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ex rel., 102 P.3d 600 (2004) that a plaintiff’s complete failure to attach an affidavit to a complaint

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alleging medical malpractice “mandates dismissal”. Id. at 605. NRS 41A.071 states that the

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court “shall dismiss the action, without prejudice,” indicating that dismissal for failure to attach a

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medical expert affidavit is mandatory. Therefore, the Court finds that there is little question as to

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whether Plaintiff’s medical malpractice claim will be dismissed and a stay is warranted if

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Plaintiff’s remaining claims will be dismissed.

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Plaintiff argues that Acevedo violated physician-patient privilege on September 12, 2009

Physician-Patient Privilege

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when Defendant disclosed Plaintiff’s medical information to an officer at CCDC. (#5 at 11).

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Specifically, when an officer called Acevedo to discuss the incident where Plaintiff fell down,

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Defendant disclosed to the officer that she had checked Plaintiff’s blood pressure earlier and

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Plaintiff was “okay”. (Id.) The complaint does not identify the legal basis for Plaintiff’s claim,

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but he appears to be arguing that Acevedo violated NRS 49.225, NRS 49.235 or the Health

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Insurance Portability and Accountability Act of 1996 (“HIPAA”) by disclosing his medical

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information to the officer at CCDC.2 In the motion to dismiss, Defendant contends that the

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relevant privilege statutes do not convey a private right of action and that Plaintiff’s claim should

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be dismissed.

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To the extent that Plaintiff raises his claim under HIPAA, the Court will likely dismiss the

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claim because the Ninth Circuit has clearly established that “HIPAA itself provides no private

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right of action.” Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th Cir. 2007).

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Similarly, both the Nevada Supreme Court and the Ninth Circuit have held that NRS 49.215 and

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49.225 “establish a physician-patient privilege, not a private right of action.” Miller v. McDaniel,

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124 Fed.Appx. 488, 490 (9th Cir. 2005); see also Ashokan v. State Dep’t of Ins., 109 Nev. 662,

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856 P.2d 244, 248 (1993). Therefore, the Court finds that it is likely that Plaintiff’s claim of a

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violation of the physician-patient privilege will be dismissed.

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3.

Eighth Amendment Deliberate Indifference

A prison official acts with “deliberate indifference ... only if the [prison official] knows of

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and disregards an excessive risk to inmate health and safety.” Gibson v. County of Washoe,

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Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal quotation marks omitted).

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Under this standard, the prison official must not only “be aware of facts from which the inference

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could be drawn that a substantial risk of serious harm exists,” but that person “must also draw the

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In his response to the pending motion to dismiss, Plaintiff still does not identify the legal
basis for his claim that his physician-patient privilege was violated. (See #23 at 2-3). Instead, he
simply states that Nevada statutes are “inapplicable to Federal 1983 claims”. (Id.)
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inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994). “If a [prison official]

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should have been aware of the risk, but was not, then the [official] has not violated the Eighth

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Amendment, no matter how severe the risk.” Gibson, 290 F.3d at 1188 (citation omitted). This

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“subjective approach” focuses only “on what a defendant’s mental attitude actually was.”

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Farmer, 511 U.S. at 839, 114 S.Ct. 1970. “Mere negligence in diagnosing or treating a medical

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condition, without more, does not violate a prisoner’s Eighth Amendment rights.” McGuckin,

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974 F.2d at 1059 (alteration and citation omitted).

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In Count VIII of Plaintiff’s complaint, he alleges that Acevedo was deliberately indifferent

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to his medical needs after the September 12, 2009 incident where he allegedly passed out and fell

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to the ground. (#5 at 11). Plaintiff alleges that after Clemons fell, Acevedo told an officer that

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Clemons should get some fresh air because she had “checked his blood pressure earlier” and the

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plaintiff was “okay”. (Id.) When Clemons later requested Tylenol pills and informed the nurse

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that he had a bad headache, Acevedo allegedly did not recheck Plaintiff’s vital signs, temperature

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or blood pressure. (Id.) In addition, Plaintiff contends that the defendant never reported the

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incident to the other medical staff. (Id.)

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Upon review of these allegations, it is unlikely that the court will find that Defendant

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Acevedo’s actions rose to the level of deliberate indifference because Plaintiff’s allegations do not

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demonstrate more than potential medical negligence. The allegations in the complaint do not

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show that Acevedo knew of and disregarded an excessive risk to Plaintiff’s health and safety.

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According to Plaintiff, Acevedo had checked his blood pressure earlier the same day and there is

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no allegation that Acevedo knew that Plaintiff required further medical treatment after the fall.

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As a result, it is unlikely that Plaintiff’s Eighth Amendment claim will survive the pending

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motion to dismiss. Because it appears that all of the claims against Defendant Acevedo are

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subject to dismissal, a stay of discovery is appropriate.

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In addition, the Court will deny Plaintiff’s Motion to Strike All Portions of the

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Defendants’ Reply to Plaintiff’s Complaint Under Federal Rule of Civil Procedure 60(a) (#33).

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While Plaintiff entitles the filing as a “motion to strike,” it is actually a response to Defendant’s

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motion to stay asking that the Court not stay the action. Accordingly,
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IT IS HEREBY ORDERED that Defendant Elizabeth L. Acevedo’s Motion to Stay

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Discovery in Light of the Pending Motion to Dismiss, or, in the Alternative, Motion to Extend All

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Discovery Deadlines for an Additional 120 Days (#31) is granted in part. Discovery in this

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action is stayed pending the Court’s ruling on Defendant’s motion to dismiss (#18).

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike All Portions of the

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Defendants Reply to Plaintiff’s Complaint Under Fed. Rule of Civil Procedure 60(a) (#33) is

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denied.

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IT IS FURTHER ORDERED that the hearing scheduled on Defendant Elizabeth L.

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Acevedo’s Motion to Stay Discovery (#31) for Friday, May 27, 2011 at 9:30 a.m. is vacated.

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DATED this 26th day of May, 2011.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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