Rimer v. Sandoval et al

Filing 137

ORDER Granting 81 Motion for Summary Judgment. Defendants are instructed to submit a proposed judgment within 7 days of the issuance of this order. IT IS FURTHER ORDERED that 133 Motion to File a Sur-reply is DENIED. Signed by Judge James C. Mahan on 2/18/16. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STANLEY RIMER,

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Plaintiff(s),

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Case No. 2:13-CV-1440 JCM (GWF)
ORDER

v.
BRIAN SANDOVAL, et al.,

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Defendant(s).

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Presently before the court is defendants Dwight Neven, E.K. McDaniel, James Cox,

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Francis Dreesen, Richard Houke, Robert Owens, Jamie Rainone, Robert Bannister, Catherine

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Cortez Masto, Linda Adams, Doni Jennings, Cynthia Sablica, Brian Sandoval, Grant Lee, Efrain

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Lona, Tatiana Sowell, Tela Wilson, Cary Leavitt and Harold Wickham’s motion for summary

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judgment. (Doc. #81). Plaintiff Stanley Rimer filed a response, (Doc. #125), and defendants filed

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a reply. (Doc. #132). Plaintiff also filed a motion to file a sur-reply to defendants’ motion for

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summary judgment. (Doc. # 133).

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I.

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This is a pro se prisoner civil rights action. Plaintiff is an inmate currently housed at Lovelock

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Correctional Center (“LCC”). From June 2011 to January 2014 plaintiff was housed at High Desert

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State Prison (“HDSP”), and in his fourth amended complaint, plaintiff sues multiple defendants

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for deliberate indifference to his medical needs while incarcerated at HDSP. (Doc. #47).

Background

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Plaintiff’s complaint alleges that he was diagnosed with an anxiety condition before he came

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to HDSP and was taking Vistaril to treat it. (Doc. #47 at 11–12). Once incarcerated, in June 2011,

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plaintiff was seen by defendant Lee, a psychiatrist, for reporting anxiety and hearing “voices of

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James C. Mahan
U.S. District Judge

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the lord at time when he was praying.” (Doc. #81, Exh. A). Defendant Lee proscribed Risperdal

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to add to his Vistaril. (Id.)

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For about a year thereafter, plaintiff reported that he had not had an anxiety attack in a long

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time, was “med compliant,” and only used the Vistaril for “sedative purposes.” (Doc. #81, Exh.

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A). Between July and October 2012, plaintiff reported that he had been on Vistaril off and on for

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four years and that in the last two to three months he had been experiencing ringing in his ears and

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high blood pressure. (Id.)

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Consequently, on October 30, 2012, defendant Lee discontinued both the Risperdal and

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Vistaril prescriptions. (Id.) Thereafter, plaintiff reported increased anxiety attacks. Medical

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personnel discussed coping techniques with plaintiff, but he refused to try them. Plaintiff was then

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referred for a mental health evaluation, and defendant Lee reviewed plaintiff’s chart. (Id.)

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Defendant Lee did not find grounds to reissue a prescription and told plaintiff he would not

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prescribe Vistaril because there “is no clinical picture of anxiety in your case.” (Id.)

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Plaintiff also complained that he was unable to sleep due to the anxiety. (Id.) However, his

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cellmate reported that the plaintiff snores and “sleeps all night.” (Id.) Nonetheless, on February

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20, 2013, Defendant Lee saw plaintiff again. (Id.) After discussing whether plaintiff was

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experiencing psychological problems, plaintiff once again requested Vistaril but agreed to take

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Celexa instead. (Id.)

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Plaintiff’s complaint also alleges that defendant Rainone, a caseworker who reviewed

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plaintiff’s grievances, transferred plaintiff to a different protective segregation unit in retaliation

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for plaintiff filing a lawsuit against her in relation to these events. (Doc. #47 at 21).

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II.

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The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that "there is no genuine issue as to any material fact and that the movant is entitled to a

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judgment as a matter of law." Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is

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"to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317,

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323–24 (1986).

James C. Mahan
U.S. District Judge

Legal Standard

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In determining summary judgment, a court applies a burden-shifting analysis. "When the

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party moving for summary judgment would bear the burden of proof at trial, it must come forward

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with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at

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trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine

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issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests.,

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Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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In contrast, when the nonmoving party bears the burden of proving the claim or defense,

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the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed

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to make a showing sufficient to establish an element essential to that party's case on which that

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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party fails to meet its initial burden, summary judgment must be denied and the court need not

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consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60

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(1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing

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party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the

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claimed factual

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dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

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However, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,

James C. Mahan
U.S. District Judge

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is "to be believed, and all justifiable

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inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is

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merely colorable or is not significantly probative, summary judgment may be granted. See id. at

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249–50.

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III.

Discussion
a. Motion to file sur-reply

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Plaintiff requested to file an unauthorized sur-reply to the motion for summary judgment

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(doc. # 133), which defendants oppose. (Doc. #134). The local rules provide only for a response

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and a reply to a motion. See LR 7-2(b) (providing for responses); LR 7-2(c) (providing for replies).

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There is no provision permitting a sur­reply absent the court’s approval. Defendant’s motion for

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summary judgment was only thirteen pages. This court previously ordered plaintiff to file a

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response that complies with the page limit provided by the local rules and struck defendant’s first

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response to the motion for summary judgment for its excessive length. (Doc. # 102). Accordingly,

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the court finds no good cause to grant plaintiff’s request. Plaintiff’s motion to file a sur-reply is

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denied.

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b. Eighth Amendment claims against all defendants

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In order to state a claim for relief under the Eighth Amendment based on a deliberate

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indifference to serious medical needs, a plaintiff must present factual allegations tending to

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establish that the defendant official knew of and disregarded an excessive risk to inmate health or

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safety. See, e.g., Simmons v. Navajo County, 609 F.3d 1011, 1017-18 (9th Cir. 2010). The official

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must be aware of the facts from which the inference of an excessive risk to inmate health or safety

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could be drawn and must draw the inference. Id. In other words, a plaintiff must show that the

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official was "(a) subjectively aware of the serious medical need and (b) failed adequately to

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respond." Id. (quoting prior authority, with emphasis in original). Medical misdiagnosis,

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differences in medical opinion, medical malpractice, and negligence do not amount to deliberate

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indifference. See, e.g., McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), rev’d on other

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grounds, WMX Tech., Inc. v. Miller, 104 F.3d 1133 (9th Cir.1997)(en banc); Sanchez v. Vild, 891

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F.2d 240, 241-42 (9th Cir. 1989).

James C. Mahan
U.S. District Judge

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Prison authorities have wide discretion regarding the nature and extent of medical

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treatment provided to prisoners. Snow v. Gladden, 338 F.2d 999 (9th Cir. 1964) (citing Weller v.

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Dickson, 314 F.2d 598, 602 (9th Cir. 1963)). The crux of the complaint revolves around a

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disagreement regarding the medical treatment provided by defendant Lee. Additionally, based on

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the allegations, plaintiff wrote notices to supervising prison officials and informed them about the

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denial of treatment. (Doc. #47).

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Plaintiff took Vistaril and Risperdal before he went to HDSP. (Doc. #47). While on Vistaril

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he claimed to use it only for sedative purposes. (Id.) Defendant Lee took plaintiff off the

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medications because plaintiff was experiencing high blood pressure and ringing in his ears. (Id.)

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Defendant then claimed to have anxiety attacks and said he needed the Vistaril. (Id.)

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The evidence shows that defendant Lee physically examined and monitored plaintiff on

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several occasions over the relevant time period in response to plaintiff’s complaints. Defendant

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Lee did not find that plaintiff demonstrated clinical anxiety. Far from demonstrating deliberate

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indifference toward the plaintiff’s needs, defendant Lee was willing to prescribe Celexa for

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plaintiff’s depression. (Id.) Defendant Lee saw plaintiff as a patient on a number of occasions.

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Although he did not observe any clinical evidence of anxiety, defendant Lee and his staff

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offered plaintiff alternative coping mechanisms. Plaintiff refused to try them. Defendant Lee relied

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on his medical judgment to determine appropriate treatment for plaintiff. Plaintiff has presented

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no evidence that defendant Lee and assisting personnel’s decisions or actions fell below the

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applicable standards of care.

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At most, plaintiff has raised a difference of medical opinion regarding his treatment.

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Plaintiff was clearly receiving ongoing care for his mental health. (Doc. #81 Exh. A). When

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plaintiff kited, he was often seen either by defendant Wilson or defendant Lee. (Id.) Plaintiff

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presents no evidence suggesting that the decision to deny the Vistaril was based on anything other

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than the sound exercise of medical judgment. This difference of opinion regarding the appropriate

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course of treatment does not amount to a deliberate indifference to serious medical needs, and

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plaintiff’s claim fails as a matter of law. See Sanchez, 891 F.2d at 242.

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...

James C. Mahan
U.S. District Judge

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c. First Amendment claim against defendant Lee

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Plaintiff claims that defendant Lee violated his First Amendment right to freedom of

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religion because he prescribed Risperal when the plaintiff told Lee that he heard God during prayer

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or meditation.

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Prisoners seeking relief under § 1983 must exhaust all available administrative remedies

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prior to bringing suit. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to

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prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in

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any jail, prison, or other correctional facility until such administrative remedies as are available

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are exhausted.”); Jones v. Bock, 549 U.S. 199, 212 (2007) (citing Porter v. Nussle, 534 U.S. 516,

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524 (2002) (“There is no question that exhaustion is mandatory under the PLRA and that

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unexhausted claims cannot be brought in court.”)). This requirement is mandatory regardless of

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the relief sought. See Booth v. Churner, 532 U.S. 731, 741 (2001).

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A prison inmate in Nevada satisfies the administrative exhaustion requirement by

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following the procedures set forth in NDOC Administrative Regulation 740. Hall v. Skolnik, No.

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2:10-CV-00054-JCM, 2012 WL 993726, at *3 (D. Nev. Mar. 23, 2012). This regulation expressly

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mandates that inmates “shall file an informal grievance” within six months “if the issue involves

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personal property damage or loss, personal injury, medical claims or any other tort claims,

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including civil rights claims” or within ten days “if the issue involves any other issues within the

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authority and control of the [NDOC] including, but not limited to, . . . food.” Id.

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It further warns that “[f]ailure by the inmate to submit a proper Informal Grievance form”

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within this time frame “shall constitute abandonment” of the inmate’s right to pursue resolution of

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that claim at any level of the inmate grievance procedure. Id. Thus, an inmate in the custody of

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the NDOC who fails to timely file a proper informal grievance has abandoned his right to pursue

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resolution of any such claims through the inmate grievance procedure. Id.

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Defendants have established that plaintiff failed to exhaust his administrative remedies.

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Plaintiff failed to file a proper informal grievance during the required time frame. Plaintiff’s

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grievance history demonstrates that, despite his routine filing practices, at no point in time did

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defendant raise concerns about what effect his medication may have on his religious practices.

James C. Mahan
U.S. District Judge

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(Doc. #81, Exh. 2). Because he failed to adhere to the inmate grievance procedure, his claim is

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dismissed for failure to exhaust administrative remedies.

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d. First Amendment claim against defendant Rainone

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Plaintiff claims that defendant Rainone transferred plaintiff to another protective

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segregation unit in retaliation for plaintiff filing a lawsuit against her. (Doc. #47). Defendants do

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not respond substantively to plaintiff’s claim but note that plaintiff has raised a similar version of

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this issue in the Eighth Judicial District Court for Clark County, Nevada, Case No. A-13-693728-

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C. (Doc. #81, Exh. D). The state district court dismissed plaintiff’s complaint for failure to state a

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claim and failure to exhaust administrative remedies. That dismissal was recently upheld by the

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Nevada Supreme Court. (Doc. #132, Exh. C).

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Prisoners have a First Amendment right to file prison grievances and to pursue civil rights

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litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “Without those

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bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy

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prison injustices. And because purely retaliatory actions taken against a prisoner for having

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exercised those rights necessarily undermine those protections, such actions violate the

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Constitution quite apart from any underlying misconduct they are designed to shield.” Id.

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To state a viable First Amendment retaliation claim in the prison context, a plaintiff must

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allege: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2) because

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of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of

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his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional

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goal.” Id. at 567-68.

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As a threshold matter, it appears that defendant did file grievances with respect to his claim

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regarding defendant Rainone. (Doc. #81, Exh. 2 at 68). Nonetheless, plaintiff does not assert a

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viable claim for retaliation. Plaintiff was not moved into a protective segregation unit upon

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initiating litigation against defendant Rainone. Rather, he was merely moved from one protective

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segregation unit to another protective segregation unit. The record indicates that both units are in

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the same custody and same class level and both units afford plaintiff identical privileges. (Id.)

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James C. Mahan
U.S. District Judge

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Plaintiff cannot avoid summary judgment by relying solely on conclusory allegations that

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defendant Rainone impeded upon defendant’s First Amendment rights without supporting factual

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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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Plaintiff has not shown any indication that a transfer between units adversely impacted or

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chilled his First Amendment rights. Therefore, defendant’s motion for summary judgment with

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respect to plaintiff’s First Amendment claim against defendant Rainone is granted.
The court notes that defendants also assert that they are entitled to qualified immunity. The

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court need not address this defense at this time, since plaintiff’s claims fail as a matter of law.
IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED defendants’ motion for

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summary judgment (doc. # 81) be, and the same hereby is, GRANTED. Defendants are instructed

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to submit a proposed judgment within seven (7) days of the issuance of this order.

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IT IS FURTHER ORDERED that plaintiff’s motion to file a sur-reply (doc. #133) be, and
the same hereby is, DENIED.
DATED February 18, 2016.

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UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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