Rimer v. State of Nevada ex rel Nevada Department of Corrections et al

Filing 258

ORDER Granting Defendants' 235 Motion for Summary Judgment. The Clerk of Court is instructed to close this case. Signed by Judge Richard F. Boulware, II on 9/21/017. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

Stanley Rimer,

10

Plaintiff,

11
12

Case No. 2:14-cv-00889-RFB-CWH

v.

ORDER
Defendant’s Motion for Summary Judgment,
ECF No. 235

Dwight Neven, et al.

13

Defendants.

14

I.

15

Before the Court is Defendants’ Motion for Summary Judgment (ECF No. 235). For the

16

INTRODUCTION

reasons stated below, the Court Grants Defendants’ motion.

17

II.

18

Plaintiff’s Amended Complaint, filed on June 30, 2014, alleges six causes of action against

19

24 defendants. Subsequent to this Court’s screening order and decision on the Motion to Dismiss

20

in this case, the following causes of action against the following defendants remain: a claim for

21

deliberate indifference to serious medical need, in violation of the Eighth Amendment, pursuant

22

to 42 U.S.C. 1983, against Defendants Dwight Neven, Harold Wickham, Jennifer Nash, Timothy

23

Filson, Frank Dreesen, Jerry Howell, Joseph Hanson, Romeo Aranas, Cynthia Sablica, and Linda

24

Adams.

BACKGROUND

25

Defendants filed their Motion for Summary Judgment on January 30, 2017. (ECF No. 235).

26

Plaintiff was granted an extension of time to respond until April 6, 2017. (ECF No. 243). Plaintiff

27

did not file a Response at that time, and instead filed another Motion to Extend Time to Respond

28

(ECF No. 245), which Defendants opposed. Plaintiff’s Reply to that opposition also included

1

responsive arguments to the Motion for Summary Judgment (ECF No. 247). The Court granted

2

the Motion to Extend Time, and construed Plaintiff’s Reply (ECF No. 247) as, additionally, a

3

Response to the Motion for Summary Judgment.

4

On July 14, 2017, the Court held a hearing as to Defendants’ Motion for Summary

5

Judgment.

6

III.

7

Summary judgment is appropriate when the pleadings, depositions, answers to

8

interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no

9

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

10

Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a

11

motion for summary judgment, the court views all facts and draws all inferences in the light most

12

favorable to the nonmoving party. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th

13

Cir. 2011).

LEGAL STANDARD

14

Where the party seeking summary judgment does not have the ultimate burden of

15

persuasion at trial, it “has both the initial burden of production and the ultimate burden of

16

persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz

17

Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). “In order to carry its [initial] burden of

18

production, the moving party must either produce evidence negating an essential element of the

19

nonmoving party’s claim or defense or show that the nonmoving party does not have enough

20

evidence of an essential element to carry its ultimate burden of persuasion at trial.” Id. If the

21

movant has carried its initial burden, “the nonmoving party must produce evidence to support its

22

claim or defense.” Id. at 1103. In doing so, the nonmoving party “must do more than simply show

23

that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a

24

whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine

25

issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation

26

marks omitted). However, the ultimate burden of persuasion on a motion for summary judgment

27

rests with the moving party, who must convince the court that no genuine issue of material fact

28

exists. Nissan Fire, 210 F.3d at 1102.

-2-

1

IV.

2

The Court incorporates its findings of undisputed facts articulated during the hearing on

3

UNDISPUTED FACTS

July 14, 2017.

4

Plaintiff is an inmate in the custody of the Nevada Department of Corrections (“NDOC”)

5

and is currently housed at Lovelock Correctional Center in Lovelock, Nevada. On or about May

6

17, 2013, while housed at High Desert State Prison in Indian Springs, Nevada, Plaintiff submitted

7

a “third request for dental treatment” complaining of an abscessed tooth and/or broken crown. In

8

response to that request, prison dental staff informed Plaintiff that they had not received any other

9

kites or requests related to the requested treatment, and that Plaintiff would be seen by the dental

10

provider in the order in which his request was received.

11

On July 4, 2013, Plaintiff submitted another request for dental treatment stating that he had

12

“teeth that need repaired, filling, crown.” In response to Plaintiff’s July 4, 2013 request, prison

13

dental staff informed Plaintiff that he would be seen when his name came up chronologically on

14

the list of prisoner requests.

15

On July 16, 2013, Plaintiff was examined and treated by Defendant Hanson, a dentist

16

employed by the NDOC at High Desert. During the July 16, 2013 appointment, Dr. Hanson

17

extracted Plaintiff’s tooth. On July 17, 2013, Plaintiff submitted another request for dental

18

treatment stating that he needed a filling for a molar. On July 30, 2013, Plaintiff was again

19

examined by Dr. Hanson. During the July 30, 2013 appointment, Dr. Hanson determined that

20

Plaintiff’s tooth was non-restorable, and offered to extract it. Plaintiff declined the offer.

21

Plaintiff submitted a first and second-level grievance for not receiving adequate care

22

related to his dental issues. The first-level grievance responder found that Mr. Rimer had been

23

examined by medical staff on multiple occasions in 2013. His second-level grievance was denied

24

by Dr. Aranas on December 26, 2013, based on his having been seen by a dental provider twice in

25

July 2013.

26

Dr. Aranas also examined Plaintiff twice in 2012, in response to complaints about a

27

ringing/pulsating noise in his ear, as well as a skin condition. In each instance, Dr. Aranas

28

determined there was no need for treatment. During an August 2012 examination, he tested

-3-

1

Plaintiff’s blood pressure and found it to be within acceptable limits.

2

On or about January 23, 2014, Plaintiff was transferred to Lovelock Correctional Center.

3

Plaintiff’s Amended Complaint asserts that he was treated with beta blockers in February 2014 at

4

Lovelock, for his ear ringing, and was told that his blood pressure was the cause. Rimer also asserts

5

that he was subjected to psychological damage from being prescribed Risperdal.

6
7
8

V.

DISCUSSION
A. Legal Standards
1. Eighth Amendment

9

The Eighth Amendment’s prohibition against cruel and unusual punishment protects

10

prisoners not only from inhumane methods of punishment but also from inhumane conditions of

11

confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006), opinion amended on

12

reh’g, No. 04-35608, 2006 WL 3437344 (9th Cir. Nov. 30, 20016). “A prisoner claiming an Eighth

13

Amendment violation [for conditions of confinement] must show: (1) that the deprivation he

14

suffered was objectively, sufficiently serious; and (2) that prison officials were deliberately

15

indifferent to his safety in allowing the deprivation to take place.” Id. (internal citations and

16

quotation marks omitted). “Although the routine discomfort inherent in the prison setting is

17

inadequate to satisfy the objective prong of an Eighth Amendment inquiry, those deprivations

18

denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis

19

of an Eighth Amendment violation.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). “Prison

20

officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing,

21

sanitation, medical care, and personal safety,” and the “circumstances, nature, and duration of a

22

deprivation of these necessities must be considered in determining whether a constitutional

23

violation has occurred.” Id.

24

2. Qualified Immunity

25

“The doctrine of qualified immunity protects government officials from liability for civil

26

damages insofar as their conduct does not violate clearly established statutory or constitutional

27

rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231

28

(2009). Qualified immunity is an immunity from suit rather than a defense to liability, and “ensures

-4-

1

that officers are on notice their conduct is unlawful before being subjected to suit.” Tarabochia v.

2

Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014). In deciding whether officers are entitled to qualified

3

immunity, courts consider, taking the facts in the light most favorable to the nonmoving party,

4

whether (1) the facts show that the officer’s conduct violated a constitutional right, and (2) if so,

5

whether that right was clearly established at the time. See id. Under the second prong, courts

6

“consider whether a reasonable officer would have had fair notice that the action was unlawful.”

7

Id. at 1125 (internal quotation marks omitted). While a case directly on point is not required in

8

order for a right to be clearly established, “existing precedent must have placed the statutory or

9

constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011). This

10

ensures that the law has given officials fair warning that their conduct is unconstitutional. Further,

11

the right must be defined at “the appropriate level of generality… [the court] must not allow an

12

overly generalized or excessively specific construction of the right to guide [its] analysis.”

13

Cunningham v. Gates, 229 F.3d 1271, 1288 (9th Cir. 2000); see also al-Kidd, 131 S.Ct. at 2084.

14

The plaintiff bears the burden of proving that the right was clearly established. Id. at 1125.

15

B. Discussion

16

Plaintiff alleges that Defendants were deliberately indifferent to his serious medical and

17

dental needs. Specifically, Plaintiff alleges that Defendants ignored his requests for treatment, for

18

two and a half months, regarding dental pain, a blood pressure condition, and a skin condition.

19

1. Dr. Hanson

20

Defendants argue that Dr. Hanson, an NDOC dental provider who attended to Plaintiff, is

21

entitled to summary judgment on the merits of the Eighth Amendment claim, as well as on the

22

basis of lack of personal participation, and qualified immunity.

23

Plaintiff’s allegations related to Dr. Hanson are that Plaintiff submitted a legal notice to

24

him in July 2013 regarding his inability to obtain dental treatment; that Dr. Hanson “refused to

25

address treatment for Plaintiff’s second molar and bleeding gums” at a July 17, 2013 appointment;

26

that he did not offer to do a filling or root canal on July 30, 2013; and that Dr. Hanson coordinated

27

efforts to deny Plaintiff’s grievances.

28

The Ninth Circuit has established a two-part test for deliberate indifference to a serious

-5-

1

medical need: First, the plaintiff must establish a serious medical need, meaning that failure to

2

treat the condition could result in “significant injury or the unnecessary and wanton infliction of

3

pain.” Peralta v. Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (citing Jett v. Penner, 439 F.3d 1091,

4

1096 (9th Cir. 2006)). Second, the plaintiff must demonstrate the defendant’s deliberate

5

indifference to the need, meaning that the prison official “knows of and disregards an excessive

6

risk to inmate health.” Id. The defendant’s indifference must be intentional. Jett, 439 F.3d at 1096.

7

Further, the plaintiff must show that harm resulted from the defendant’s indifference. Id.

8

“[A] difference of opinion between a prisoner-patient and prison medical authorities

9

regarding treatment does not give rise to a 1983 claim.” Franklin v. State of Or., 662 F.2d 1337,

10

1344 (9th Cir. 1981). To the extent Plaintiff claims Dr. Hanson violated his rights by offering to

11

extract his tooth rather than provide a root canal, based on his assessment of the appropriate

12

medical options available, a difference of opinion in terms of Plaintiff’s view of the availability of

13

a root canal remedy does not establish a valid Eighth Amendment claim. Plaintiff has admitted

14

that Dr. Hanson did offer to extract his tooth, upon a determination that it was not restorable, and

15

therefore he was not deliberately indifferent to any serious medical need.

16

Alternatively, the Court finds that Dr. Hanson would be entitled to qualified immunity.

17

Plaintiff has not point to any clearly established precedent that would show that declining to

18

provide Plaintiff’s requested treatment, subsequent to a medical examination, would violate

19

Plaintiff’s Eighth Amendment rights, and the Court is not aware of any such precedent. In fact,

20

pursuant to Franklin, supra, Plaintiff has not raised any constitutional violation on Dr. Hanson’s

21

part.

22

Plaintiff also argues that Dr. Hanson is culpable for the denial or his grievances, and a 2.5-

23

month delay in responding to his grievance. Dr. Hanson has stated in an affidavit that he was not

24

involved in the process of coordinating or responding to inmate grievances, and Plaintiff has

25

presented no evidence that he was personally involved in that process.

26

Therefore, the Court grants summary judgment in favor of Defendant Hanson.

27

2. Dr. Aranas

28

Defendant Aranas is an NDOC medical provider and NDOC Medical Director. Plaintiff

-6-

1

alleges that Dr. Aranas failed to act in response to Plaintiff’s dental grievances; that sometime in

2

2012 Dr. Aranas examined Plaintiff but provided no treatment or testing for a ringing or pulsating

3

ear noise Plaintiff experienced; and that Dr. Aranas was involved in coordinating efforts to deny

4

Plaintiff’s grievances.

5

The undisputed evidence shows that Dr. Aranas did examine Plaintiff, and conduct a test

6

of Plaintiff’s blood pressure, in response to the complaints about ringing in his ear. Dr. Aranas

7

determined that no treatment was necessary. This does not amount to deliberate medical

8

indifference under the Eighth Amendment and Section 1983. Plaintiff has also presented no

9

evidence that harm resulted from this course of treatment. He has merely alleged that different

10

doctors, at a different facility, decided on a different assessment and course of treatment. Plaintiff

11

has presented no evidence of Dr. Aranas’ involvement in coordinating review of grievances.

12

Therefore, the Court grants summary judgment in favor or Dr. Aranas.

13

3. Nurses Adams and Sablica

14

Plaintiff alleges that Nurses Adams and Sablica were the staff receiving Plaintiff’s kites

15

for medical and dental treatment, and that they refused to schedule appointments for Plaintiff’s

16

dental needs promptly.

17

The undisputed evidence shows that Nurse Adams responded to four informal-level

18

medical or dental grievances submitted by Plaintiff. She denied two on the basis of Plaintiff having

19

already received or been offered treatment for the complaint specified in his grievance. She denied

20

a grievance related to medication that he had been taking for over a year, for which he had an

21

opportunity to discuss the prescription with staff; and granted a grievance concerning a

22

prescription he needed for a blood pressure medication.

23

The undisputed evidence shows that Nurse Sablica reviewed one of the grievances related

24

to Plaintiff wanting to discontinue a medication, Risperdal, based on her determination that

25

Plaintiff had consented to take the medication in June 2011, had agreed to a dosage increase in

26

September 2011, and had the right to refuse or stop taking the medication at any time.

27

Therefore, the undisputed evidence shows no deliberate indifference or unconstitutional

28

response to Plaintiff’s grievances. At the hearing on this motion, Plaintiff raised arguments about

-7-

1

a 2.5-month delay in response to one of his grievances about his medical condition. Such a delay

2

alone does not suffice to create a claim for deliberate indifference to a serious medical need,

3

particularly when all of Plaintiff’s grievances were responded to and addressed in the order in

4

which they were submitted, relative to other inmates’ requests.
4. Warden and Associate Warden Defendants: Neven, Wickham, Nash, Filson,

5

Dreesen, Howell

6
7

Remaining Defendants are custodial staff who were solely responsible for screening

8

grievances for procedural defects. Plaintiff’s general allegations that these Defendants failed to act

9

or intervene to provide him with dental or medical care do not amount to a claim of a constitutional

10

deprivation. There is no evidence or specific allegation as to these Defendants tampering with or

11

deliberately ignoring Plaintiff’s grievances, and on the undisputed facts, they were not responsible

12

for providing any medical or dental treatment. Plaintiff only generally alleges delays in receiving

13

treatment.

14

In the alternative, Defendants Neven, Wickham, Nash, Filson, Dreesen, and Howell are

15

entitled to qualified immunity, as Plaintiff has not established that they violated any of his clearly

16

established constitutional rights.
Therefore, the Court grants summary judgment in favor of the remaining warden

17
18

defendants.

19

...

20

...

21

...

22

...

23

...

24

...

25

...

26

...

27

...

28

...

-8-

1

VI.

CONCLUSION

2

Plaintiff has raised no evidence to contradict the evidentiary representations of Defendants.

3

On the basis of the undisputed factual record, Plaintiff’s claims against all Defendants fail;

4

furthermore, all Defendants are, in the alternative, entitled to qualified immunity, as Plaintiff has

5

not established that they violated any of his clearly established constitutional rights.

6

Therefore, the Court GRANTS Defendant’s Motion for Summary Judgment. ECF No. 235.

7

The Clerk of Court is instructed to close this case.

8
9

DATED: September 21, 2017.

10
_________
RICHARD F. BOULWARE, II
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-