West v. Cox et al

Filing 55

ORDER. IT IS HEREBY ORDERED that 51 Plaintiff's Motion to Reconsider is DENIED. IT IS FURTHER ORDERED that Plaintiff shall have twenty-one (21) days from the filing date of this Order to file a third amended complaint. Signed by Chief Judge Gloria M. Navarro on 3/28/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARY S. WEST,
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Plaintiff,

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vs.

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GREG COX, et al.,
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Defendants.

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Case No.: 2:15-cv-00665-GMN-VCF
ORDER

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Pending before the Court is the Motion to Reconsider, (ECF No. 51), filed by Plaintiff

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Mary S. West (“Plaintiff”). Defendants Dr. Romeo Aranas (“Aranas”), Yolanda Campbell

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(“Campbell”), Beebe Clark (“Clark”), Bob Faulkner (“Faulkner”), Dr. Francisco Sanchez

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(“Sanchez”), Dr. Richard Wulff (“Wulff”), and Jo Gentry (“Gentry”) (collectively

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“Defendants”) filed a Response, (ECF No. 53), and Plaintiff filed a Reply, (ECF No. 54). For

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the reasons discussed herein, Plaintiff’s Motion to Reconsider is DENIED.

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I.

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BACKGROUND
This case arises from alleged constitutional violations that occurred while Plaintiff was

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incarcerated at Florence McClure Women’s Correctional Center (“FMWCC”) in Las Vegas,

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Nevada. (Second Am. Compl. (“SAC”) ¶ 8, ECF No. 30). Plaintiff states six counts of Eighth

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Amendment violations against Defendants for deliberate indifference to her conditions. (Id. ¶¶

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59, 64, 67, 72, 75, 79).1 Specifically, Plaintiff alleges she suffered or continues to suffer from

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the following medical conditions: (1) injuries to her right shoulder; (2) injuries to her left wrist;

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and (3) growths on her forehead and hands. (Id. ¶¶ 7–57).

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A more complete description of the events can be found in this Court’s Prior Order and will not be fully
repeated here. (See Order 1:16–4:4, ECF No. 50). However, a summary of the key facts necessary to decide the
instant Motion will follow.
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Page 1 of 8

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A.

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Plaintiff alleges that her right shoulder was injured on August 14, 2013. (Id. ¶ 17). After

Right Shoulder

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her injury, Nevada Department of Corrections (“NDOC”) medical doctor James Holmes

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(“Holmes”) saw her twice a week and provided her a sling, provided her an ace wrap,

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prescribed her Tylenol, and performed an x-ray. (Id. ¶ 20–21). Plaintiff alleges numerous,

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additional visits to Wulff and Sanchez where they examined her, x-rayed her shoulder, and

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treated her with an injection. (Id. ¶ 21–30). On March 19, 2015, Wulff ordered an MRI of

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Plaintiff’s shoulder, which she received on April 17, 2015. (Id. ¶ 35). Based on the MRI, Wulff

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recommended surgery, which he performed on June 15, 2015. (Id. ¶ 39–40).

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Throughout this time, Plaintiff submitted kites and grievances to FMWCC regarding her

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treatment. (Id. ¶¶ 23, 22). Moreover, Plaintiff requested that family members phone prison

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officials with respect to her shoulder and wrist injuries. (Id.) Plaintiff alleges that Aranas,

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Gentry, Clark, and Faulkner routinely denied these grievances and that Faulkner asked Plaintiff

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to stop having family members call the office. (Id. ¶¶ 23, 32–34, 37).

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B.

Left Wrist

Plaintiff alleges she injured her left wrist on June 1, 2014. (Id. ¶ 43). The fracture was

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confirmed, and Plaintiff was approved for surgery on June 3, 2014. (Id.). Between June 30 and

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November 16, Plaintiff alleges various specific instances in which Campbell, Gentry, Clark,

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and Faulkner falsely informed her about the status and scheduling of her surgery. (Id. ¶¶ 46–49,

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75). During this time, Defendants Aranas, Gentry, Clark, and Faulkner allegedly ignored

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Plaintiff’s kites and grievances concerning her pending wrist surgery. (Id. ¶ 44). Ultimately, on

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November 12, 2014, Holmes performed surgery on Plaintiff’s wrist. (Id. ¶ 51).

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C.

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In June of 2014, Plaintiff submitted kites complaining of growths on her forehead and

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Forehead and Hand Growths

hands. (Id. ¶ 53). Sanchez examined the growths and determined that they were not of concern

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and did not require treatment. (Mot. to Dismiss (“MTD”) 13:11–13, ECF No. 39).

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Additionally, Clark allegedly suggested that Plaintiff cover the growths on her forehead with

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her bangs. (SAC ¶ 54). Plaintiff alleges that her private physician is currently treating the

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growths with Prednisone injections and Plaintiff is awaiting a biopsy. (Id. ¶ 56).
On August 8, 2017, the Court granted in part and denied in part Defendants’ motion to

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dismiss. (See Prior Order, ECF No. 50) (hereinafter “Prior Order”). Specifically, the Court

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found that Plaintiff failed to state cognizable Eighth Amendment claims with respect to Counts

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II, III, IV, and VI, and Count V in regard to Aranas, Sanchez, and Wulff. (See id. 13:1–10).

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Plaintiff filed the instant Motion to Reconsider on August 23, 2017, in which Plaintiff requests

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that the Court reverse its dismissal of the aforementioned claims or, in the alternative, permit

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Plaintiff to file an amended complaint. (Mot. to Recons. 9:10–19).

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II.

LEGAL STANDARD

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“[A] motion for reconsideration should not be granted, absent highly unusual

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circumstances.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation omitted).

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Reconsideration is appropriate where: (1) the court is presented with newly discovered

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evidence, (2) the court committed clear error or the initial decision was manifestly unjust, or (3)

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if there is an intervening change in controlling law. School Dist. No. 1J, Multnomah County v.

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ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). However, a motion for reconsideration is not

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a mechanism for rearguing issues presented in the original filings. Backlund v. Barnhart, 778

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F.2d 1386, 1388 (9th Cir. 1985). Furthermore, although the court enjoys discretion in granting

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or denying a motion under this rule, “amending a judgment after its entry remains an

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extraordinary remedy which should be used sparingly.” Allstate Ins. v. Herron, 634 F.3d 1101,

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1111 (9th Cir. 2011) (internal quotation marks and citation omitted).

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III.

DISCUSSION

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In the instant Motion, Plaintiff requests that the Court reconsider its dismissal of Counts

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II and IV as alleged against Defendants Aranas, Campbell, Clark, Gentry, and Faulkner; Count

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III as alleged against Defendants Sanchez and Wulff; Count V as alleged against Defendants

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Aranas, Sanchez, and Wulff; and Count VI as alleged against Defendants Clark and Sanchez.

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The Court will address each claim in turn.

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A.

Counts II and IV as alleged against Defendants Aranas, Campbell, Clark,
Gentry, and Faulkner.

In her Motion, Plaintiff reiterates that Aranas, Campbell, Clark, Gentry, and Faulkner

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personally delayed her diagnosis and surgery by denying her grievances, feeding her false

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information, and telling her to cease having family members call the prison on her behalf. (Mot.

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to Recons. 4:11–24). However, as stated in the Court’s Prior Order, Plaintiff fails to allege how

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Defendants, by these actions, participated in delaying her diagnosis or surgery. (Prior Order

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6:9–7:6, ECF No. 50).

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Plaintiff cites Michaud v. Bannister to assert that a prison official can be held liable for

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personal participation in a constitutional violation by denying grievances. See Michaud, No.

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2:08-cv-01371-MMD-PAL, 2012 WL 6720602, at *1 (D. Nev. Dec. 26, 2012). However,

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Michaud is factually distinguishable from the case at hand. Michaud involved an inmate for

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whom multiple doctors recommended cataract surgery. Id. at *1. The URP repeatedly denied

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surgery for four years. Id. The inmate sued the warden, alleging that the warden had responded

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negatively to the inmate’s internal grievances regarding his medical care claims. Id. at *10.

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Although the warden did not participate in the prisoner’s medical care, the Court found

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personal participation because he was responsible for “rectifying violative medical conditions

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in the prison.” Id.

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Here, in contrast, Plaintiff’s treating physicians did not recommend an MRI or surgery,

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and although Defendants may have denied her grievances, the SAC does not allege that they

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denied her care. (SAC ¶¶ 24–26, 28, 30, 35–36, 39–40). Conversely, the SAC alleges that

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Plaintiff was examined on multiple occasions and treated with pain medications, injections, x-

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rays, and a sling. (Id.). Because Plaintiff does not allege that Defendants influenced the

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physicians’ decisions regarding an MRI or surgery, Counts II and IV failed to establish the

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personal participation necessary for an Eighth Amendment violation. See Taylor v. List, 880

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F.3d 1040, 1045 (9th Cir. 1989) (stating that “[l]iability under section 1983 arises only upon a

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showing of personal participation by the defendant”). Accordingly, Plaintiff’s Motion to

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Reconsider Counts II and IV is denied.

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B.

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In regards to Count III, Plaintiff argues that her claim amounts to more than a difference

Count III as alleged against Defendants Sanchez and Wulff.

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of opinion over treatment between a prisoner and the prison medical staff. (Id. 6:1–3).

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Additionally, Plaintiff highlights the Court’s decision not to consider the report of Dr. Marshall

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Anthony, which was attached as an exhibit to Plaintiff’s response to Defendants’ motion to

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dismiss. (Id. 6:10–16).

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With respect to Sanchez and Wulff, as stated in the Court’s Prior Order, Plaintiff’s

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allegations that Sanchez and Wulff did not seek an MRI or surgery sooner do not rise to the

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level of deliberate indifference. (Prior Order 8:16–9:4). In this regard, Plaintiff’s reliance on

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Hutchinson and Jackson is misplaced. In Hutchinson, the Court declined to find an Eighth

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Amendment violation when a prison doctor misdiagnosed an inmate’s kidney stone as a urinary

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tract infection. Hutchinson v. U.S., 838 F.2d 390, 392–394 (9th Cir. 1988). In Jackson, the

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Court did find a colorable Eighth Amendment claim because an inmate alleged prison doctors

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denied him a kidney transplant because of personal animosity, rather than honest medical

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judgment. Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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Here, Plaintiff’s SAC neither alleges that Sanchez or Wulff denied her an MRI, nor that

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they did so out of animosity. Although the MRI and subsequent surgery were not as prompt or

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efficient as Plaintiff may have hoped, Plaintiff was provided multiple examinations, pain

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medication, an injection, and a sling. (SAC ¶ 24–26, 28, 30, 35–36, 39–40). Plaintiff’s

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allegations that Sanchez and Wulff delayed seeking an MRI and surgery do not rise to the level

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of a constitutional violation. Indeed, “[a] doctor’s decision not to order a particular test or

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procedure is a matter of medical judgment, and a denial of that test does not constitute cruel

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and unusual punishment.” Manley v. Nevada Dep’t of Corrections, No. 3:07-cv-00374-LRH-

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VPC, 2009 WL 2949502, at *6 (D. Nev. Sept. 11, 2009); see also Harris v. City of Vista, 402

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F. App’x 267, 268 (9th Cir. 2010).
With regard to Plaintiff’s contention that the Court overlooked Dr. Anthony’s report, the

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Court declined to consider the report in light of the general rule that “a district court may not

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consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of

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Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (quotation and citation omitted); see also

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Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996) (stating that a Rule 12(b)(6) motion to

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dismiss must be treated as a Rule 56 motion for summary judgment if the Court relies on

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materials outside the pleading submitted by either party to the motion to dismiss). In deciding

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the Court’s Prior Order, the Court declined to treat Defendants’ motion to dismiss as a motion

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for summary judgment. See Anderson, 86 F.3d at 934; see FED. R. CIV. P. 7. The Court

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therefore finds there was no error in its decision. Accordingly, Plaintiff’s Motion to Reconsider

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Count III is denied.

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C.

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As to Count V, Plaintiff seeks reconsideration of dismissal of the claim against

Count V as alleged against Defendants Aranas, Sanchez, and Wulff.

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Defendants Aranas, Sanchez, and Wulff. (Mot. to Recons. 7:19–20). Specifically, Plaintiff

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asserts that it is “unreasonable to think that [Plaintiff’s] wrist surgery could have been

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continually delayed without the participation of Defendants Wulff, Sanchez, and Aranas, since

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[Plaintiff’s] surgeon (Wulff), treating physician (Sanchez), and the NDOC Medical Director

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(Aranas) were all responsible for approving the surgery.” (Id. 8:4–8).

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However, Plaintiff’s SAC fails to allege the personal involvement of either Aranas,

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Sanchez, or Wulff in the scheduling or rescheduling of her surgery. In her SAC, Plaintiff only

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alleges: (1) Aranas knew of Plaintiff’s wrist injury; and (2) Plaintiff submitted kites and

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grievances to Aranas. (SAC ¶¶ 43–52, 74–77). The Court cannot conclude, in the absence of

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specific allegations, that Aranas, Sanchez, and Wulff were personally responsible for

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scheduling Plaintiff’s surgery. Thus, Plaintiff’s Motion to Reconsider Count V is denied.

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D.

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With regard to Count VI, Plaintiff reasserts that because her private physician treated her

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growths with a Prednisone injection and performed a biopsy, she has established that Clark and

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Sanchez were deliberately indifferent to her serious medical needs. (Id. 8:13–9:8). Plaintiff

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relies on McGuckin v. Smith to argue that an injury need not be painful in order to be “serious.”

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See 974 F.2d 1050, 1059–60 (9th Cir. 1992). However, Plaintiff’s reliance on McGuckin is

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misplaced. In McGuckin, the Court noted:

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Count VI as alleged against Defendants Clark and Sanchez.

The existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a medical
condition that significantly affects an individual’s daily activities; or the existence
of chronic and substantial pain are examples of indications that a prisoner has a
“serious” need for medical treatment.

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McGuckin, 974 F.2d at 1059 (emphasis added). Although Plaintiff does allege that her private

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physician treated her growths with Prednisone and sought a biopsy, she did not allege that the

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growths significantly affected her daily activities or caused her substantial and chronic pain.

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(SAC ¶¶ 78–80).

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Moreover, even had Plaintiff alleged the existence of a serious injury, her allegations
would still be insufficient to establish that Sanchez and Clark were deliberately indifferent to
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her needs. To the contrary, the SAC indicates that Sanchez examined Plaintiff promptly for her

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growths and determined that treatment was unnecessary. (SAC ¶ 79). This decision does not

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constitute an “unnecessary and wanton infliction of pain,” but at most “negligence in

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diagnosing or treating a medical condition,” which “without more, does not violate a prisoner’s

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Eighth Amendment rights.” McGuckin, 974 F.2d at 1059.

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In regards to Clark, the Court reiterates that Clark’s suggestion to Plaintiff to cover her

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growths with bangs does not amount to cruel and unusual punishment. (See Prior Order 11:11–

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17). Although Plaintiff may have taken offense to the suggestion, it does not rise of the level of

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deliberate indifference. Thus, Count VI failed to establish a colorable Eighth Amendment

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claim. Accordingly, Plaintiff’s Motion to Reconsider Count VI is denied.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiff’s Motion to Reconsider, (ECF No. 51), is

DENIED.
IT IS FURTHER ORDERED that Plaintiff shall have twenty-one (21) days from the

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filing date of this Order to file a third amended complaint. Failure to file a third amended

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complaint by this date shall result in the dismissal of Plaintiff’s claims dismissed in the Court’s

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Prior Order with prejudice.

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DATED this _____ day of March, 2018.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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