Fernandez v. Aranas et al

Filing 67

ORDER granting 34 Motion to Extend Time to file a Response ; ORDER denying 48 Motion to Dismiss; ORDER denying 53 Motion to deny defendant's motions; ORDER granting 65 Motion to Strike Amended Complaint; ORDER granting 15 Motion for Summary Judgment; Signed by Judge James C. Mahan on 2/27/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RENE F. FERNANDEZ,

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Plaintiff(s),

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Case No. 2:16-CV-812 JCM (NJK)
ORDER

v.
ROMEO ARANAS, et al.,

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Defendant(s).

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Presently before the court is defendant Romeo Aranas’s motion for summary judgment.

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(ECF No. 15). Plaintiff Rene Fernandez filed a response (ECF No. 40), to which Aranas replied

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(ECF No. 43).

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Also before the court is plaintiff’s motion to extend time to respond to defendant’s motion

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for summary judgment. (ECF No. 34). Defendant Aranas filed a response (ECF No. 38). Plaintiff

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has not filed a reply, and the time for doing so has since passed.

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Also before the court is defendant Aranas’s motion to dismiss defendants Hanf, Chang,

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Holmes, and Su from the action for lack of service. (ECF No. 48). Plaintiff has not filed a

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response, and the time for doing so has since passed.

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Also before the court is plaintiff’s “motion to deny defendant’s motions, oppositions,

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replies, and request for Jury Trial.” (ECF No. 53). Defendant Aranas filed a response. (ECF No.

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54). Plaintiff has not filed a reply, and the time for doing so has since passed.

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Also before the court is defendant Aranas’s motion to strike plaintiff’s amended complaint.

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(ECF No. 65). Plaintiff has not filed a response, and the time for doing so has since passed.

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...

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James C. Mahan
U.S. District Judge

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I.

Background

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The present case involves a dispute over whether prison medical staff provided adequate

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medical services to an inmate. Plaintiff was incarcerated at High Desert State Prison (“HDSP”)

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from June 3, 2011, through August 28, 2014, when he was transferred to Northern Nevada

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Correctional Center (“NNCC”). (ECF No. 4). Plaintiff alleges that during his time at HDSP,

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medical staff did not adequately attend to his medical needs.

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Plaintiff has a history of high blood pressure. (ECF No. 15-3). Prior to his incarceration

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at HDSP, plaintiff was at Clark County Detention Center (“CCDC”). While at CCDC, medical

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staff prescribed Amlodipine to control plaintiff’s blood pressure. Id. (transfer records from CCDC

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to HSDP refer to plaintiff’s medication as “Amlodipine”). Plaintiff claims that the drug he took

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while at CCDC was called Norvasc. (ECF No. 4). Norvasc is a brand-name drug with the same

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chemical composition as Amlodipine. See (ECF No. 15-4) (declaration of Dr. Romeo Aranas)

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(stating that Amlodipine is the generic name for Norvasc). Medical staff at HDSP administered

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10 mg doses of Amlodipine to plaintiff from his intake at HDSP through February of 2013. (ECF

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No. 15-3). Plaintiff asserts that he requested Norvasc instead of Amlodipine. (ECF No. 4).

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Plaintiff signed medication logs acknowledging his receipt of the brand-name drug Norvasc on at

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least seven occasions. (ECF No. 15-3).

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Plaintiff complained of health issues while taking Amlodipine/Norvasc. (ECF No. 4). On

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November 14, 2011, plaintiff sent a prison kite1 claiming that his left hand was swollen, he was in

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lots of pain, and he needed medical attention. (ECF No. 15-3). Medical staff met with plaintiff

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the next day and prescribed ibuprofen.

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On December 23, 2012, plaintiff sent a kite requesting a private medical consultation. Id.

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The next day, HDSP Doctor Ted Hanf ordered labs and a follow-up appointment. Id. On

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December 26, 2013, staff collected labs from plaintiff for urinalysis. Id. at 52.

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On January 24, 2013, plaintiff filed a kite complaining that his labs had been cancelled and

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complaining of severe kidney pain lasting three weeks. Id. at 34. Plaintiff requested that staff

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James C. Mahan
U.S. District Judge

A kite is a prisoner’s request for something from the prison facility. In the medical
context, it is usually a request to see a medical services provider.
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change his blood pressure medication from Amlodipine to Atenolol. Id. On January 31, 2013, Dr.

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Hanf ordered additional labs and scheduled a follow-up appointment with plaintiff. Id. at 27.

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On February 7, 2013, Dr. Hanf met with plaintiff. Id. Dr. Hanf’s notes indicate plaintiff

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was experiencing back pain and plaintiff attributed the pain to Norvasc. Id. at 37. Plaintiff reported

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prior use of Atenolol, and stated he preferred Atenolol as a blood pressure medication. Id. Dr.

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Hanf discontinued plaintiff’s Norvasc prescription and placed plaintiff on 100 mg of Metoprolol,

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another blood pressure medication. Id. at 27, 37. Dr. Hanf scheduled a follow-up appointment in

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a month. Id. at 37. On February 15, 2013, LabCorp completed processing of plaintiff’s remaining

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labs. Id. at 54–55.

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For the next few months, plaintiff failed to report to numerous medical appointments.
Accordingly, records of plaintiff’s initial response to Metoprolol are sparse.

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On June 28, 2013, plaintiff filed an “emergency grievance” with prison staff indicating that

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he felt “sick with dizziness and a headache, with intense pressure in the back of [his] head,

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vomiting and loose bowel movements.” (ECF No. 15-2). That same day, staff provided plaintiff

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with an immediate refill of his blood pressure medication. Id.

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Between February of 2013 and August of 2014 (when plaintiff was transferred to NNCC),

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staff treated plaintiff’s blood pressure with multiple combinations of Metoprolol, Lisinopril,

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Atenolol, and Amlodipine.

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medication regimen). When plaintiff did attend appointments, he would sometimes describe pain,

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negative side effects, and problems with his digestive system. Id. Plaintiff at times refused to take

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prescribed medications, including Norvasc and ibuprofen. (ECF No. 15-3 at 28, 55–56).

(ECF No. 15-3) (indicating numerous alterations to plaintiff’s

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On November 22, 2013, Fernandez filed an informal grievance regarding HDSP staff’s

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treatment of his blood pressure. (ECF No. 15-1). On December 31, 2016, HDSP medical staff

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responded to plaintiff’s informal grievance by noting staff’s efforts to control plaintiff’s blood

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pressure and noting that periodic follow-up visits will help staff continue to monitor plaintiff’s

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blood pressure. (ECF No. 15-1 at 13).

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As a part of his informal grievance, plaintiff had requested a remedy of being prescribed

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“a non-generic Atenolol 25 mg or Norvasc 10 mg and Ibuprofen 400 mg.” Id. At the time he

James C. Mahan
U.S. District Judge

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made the request, he was already prescribed 25 mg doses of Atenolol. (ECF No. 15-3 at 28). On

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December 16, 2013, HDSP staff prescribed plaintiff Norvasc, but on January 16, 2014, plaintiff

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signed a legal refusal of the prescription for Norvasc. Id. at 28, 55.

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On January 28, 2014, plaintiff filed a first-level grievance disagreeing with the medical

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staff’s response to his informal grievance. Id. at 14–17. On February 13, 2014, medical staff

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responded. Id. at 18. The response noted that high blood pressure symptoms evolve, and

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sometimes medication that previously worked will no longer prove effective and “must change.”

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Id.

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On March 6, 2014, plaintiff filed a second-level grievance disagreeing with the first-level

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response. Id. at 22. On April 8, 2014, Dr. Aranas, acting NDOC medical director, reviewed and

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upheld the first-level response. Id.

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On May 22, 2014, plaintiff filed a kite stating that his blood pressure was “out of control”

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since he arrived at HDSP and that he needed medical attention to receive adequate medications.

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Id. at 44. On June 2, 2014, medical staff met with plaintiff and reviewed his medications. Id. at

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30. Medical records indicate this was the last interaction between plaintiff and HDSP medical

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staff prior to plaintiff’s transfer to NNCC on August 28, 2014. Id.

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On April 8, 2016, plaintiff filed his complaint alleging deliberate indifference to a serious

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medical need. (ECF No. 4). Plaintiff alleges that the HDSP staff’s failure to properly adjust his

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blood pressure medication caused painful side effects, including kidney pain. (ECF No. 4). On

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January 6, 2017, the parties attended a court-sponsored mediation. (ECF No. 8). The parties did

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not reach a settlement.

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On December 7, 2017, plaintiff filed an amended complaint against defendants Aranas,

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Chang, Hanf, Holmes, and Su. (ECF No. 61). On December 20, 2017, defendant Aranas filed a

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motion to strike plaintiff’s amended complaint. (ECF No. 65).

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II.

Legal Standard

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a. Summary judgment

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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

James C. Mahan
U.S. District Judge

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show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

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as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to isolate

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and dispose of factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323–

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the non-moving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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

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

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

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uncontroverted at trial.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480

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(9th Cir. 2000). Moreover, “[i]n such a case, the moving party has the initial burden of establishing

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the absence of a genuine issue of fact on each issue material to its case.” Id.

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By contrast, when the non-moving 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 non-moving party’s case; or (2) by demonstrating that the non-moving 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 non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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60 (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

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

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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James C. Mahan
U.S. District Judge

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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630 (9th Cir. 1987).

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b. Leave to amend

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Federal Rule of Civil Procedure 15 states,

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(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleading only with
the opposing party's written consent or the court's leave. The court should freely
give leave when justice so requires.

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Fed. R. Civ. P. 15(a). The United States Supreme Court has interpreted Rule 15(a) and confirmed

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the liberal standard district courts must apply when granting such leave. See Foman v. Davis, 371

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U.S. 178, 182 (1962). However, the court in Foman noted an exception to granting such leave

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arises when amendment of a complaint would be futile. Id. In such cases, courts need not grant

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leave to amend. Id.

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c. Motion to strike

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Federal Rule of Civil Procedure 12(f) provides that “[t]he court may strike from a pleading

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an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R.

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Civ. P. 12(f). Additionally, district courts have inherent power to control their own dockets,

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including the power to strike items from the docket. Ready Transp., Inc. v. AAR Mfg., Inc., 627

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F.3d 402, 404 (9th Cir. 2010).

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III.

Discussion

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a. Defendant Aranas’s motion for summary judgment

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As an initial matter, the court will grant plaintiff’s motion to extend time to file a response

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to defendant’s motion for summary judgment. (ECF No. 34). Defendant Aranas noted in his

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response to plaintiff’s motion to extend time that he would not oppose granting plaintiff until

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August 15, 2017 to file a response. (ECF No. 38). Plaintiff filed his response on August 14, 2017.

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(ECF No. 40). Accordingly, as granting the extension of time promotes disposition on the merits

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and does not prejudice defendant, the court will grant plaintiff’s motion.

James C. Mahan
U.S. District Judge

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The Eighth Amendment prohibits the imposition of cruel and unusual punishment and

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“embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’”

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Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment

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when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v.

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Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff

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must satisfy both an objective standard—that the deprivation was serious enough to constitute

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cruel and unusual punishment—and a subjective standard—deliberate indifference.” Snow v.

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McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

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To establish the first prong, “the plaintiff must show a serious medical need by

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demonstrating that failure to treat a prisoner’s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must

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show “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and

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(b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny,

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delay or intentionally interfere with medical treatment, or it may be shown by the way in which

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prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner

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alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that

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the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404,

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407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a

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claim of deliberate medical indifference”).

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A difference of opinion between medical professionals concerning the appropriate course

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of treatment generally does not amount to deliberate indifference to serious medical needs.

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Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Additionally, “[a] difference of opinion

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between a prisoner-patient and prison medical authorities regarding treatment does not give rise to

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a [§] 1983 claim.” Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.

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1981). To establish that a difference of opinion amounted to deliberate indifference, the prisoner

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“must show that the course of treatment the doctors chose was medically unacceptable under the

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James C. Mahan
U.S. District Judge

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circumstances” and “that they chose this course in conscious disregard of an excessive risk to [the

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prisoner’s] health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

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“[A] complaint that a physician has been negligent in diagnosing or treating a medical

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condition does not state a valid claim of medical mistreatment under the Eighth Amendment.

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Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Even gross negligence is insufficient to

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establish deliberate indifference to serious medical needs. See Toguchi v. Chung, 391 F.3d 1051,

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1060 (9th Cir. 2004).

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Here, plaintiff’s complaint does not establish deliberate indifference to a serious medical

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need. During his time at HDSP, medical staff monitored his blood pressure condition. (ECF No.

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15-3). Plaintiff’s medical file contains 19 separate HDSP physician’s orders concerning treatment

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of plaintiff’s blood pressure and other chronic conditions. Id. Nursing staff recorded plaintiff’s

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blood pressure at least twenty times. Id. HDSP staff ordered and reviewed lab work related to

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plaintiff five times. Id. Medical staff offered plaintiff treatments that included prescription drug

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medications. Id. When plaintiff notified staff of medical emergencies, staff immediately followed

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up with him and tried to address his medical needs. Id.

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Plaintiff did not always attend his medical appointments. Plaintiff rescheduled at least

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three appointments because he was in the law library and at least two appointments because he

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was at work or school. Id. A grievance response filed by a nurse supervisor on February 13, 2014,

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notes “You have been seen by 6 providers in the past year. Additionally, we attempted to see you

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4 more times but you were not in the unit for one reason or another.” (ECF No. 15-1 at 18).

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Further, plaintiff refused to accept a medication prescription that he personally requested. (ECF

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No. 15-3). Plaintiff’s medical records demonstrate that HDSP staff attempted to help plaintiff

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control his blood pressure, but his conduct made the medical providers’ task difficult.

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Plaintiff’s complaint and medical record while at HDSP establish at most that plaintiff and

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HDSP staff had different opinions as to the appropriate treatment medications for plaintiff’s high

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blood pressure. This does not establish deliberate indifference to serious medical needs. See

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Franklin, 662 F.2d at 1344 (“A difference of opinion between a prisoner-patient and prison

James C. Mahan
U.S. District Judge

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medical authorities regarding treatment does not give rise to a [§] 1983 claim.”). The court will

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grant defendant Aranas’s motion for summary judgment.

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In light of the foregoing, the court need not consider defendant Aranas’s alternative ground

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for summary judgment, that Aranas never personally participated in any of plaintiff’s medical care.

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b. Plaintiff’s amended complaint and defendant’s motion to strike

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Plaintiff filed an amended complaint on November 21, 2017. (ECF No. 61). Defendant

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Aranas filed a motion to strike plaintiff’s amended complaint. (ECF No. 65).
Here, plaintiff cannot amend his complaint as a matter of course, as the amended complaint

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was filed more than 21 days after responsive pleadings were filed. See Fed. R. Civ. P. 15(a)(1).

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Further, the court will not grant leave to amend under Rule 15(a)(2). Plaintiff’s amended

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complaint suffers from the same deficiencies outlined in the court’s ruling on defendant’s motion

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for summary judgment.

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indifferent to plaintiff’s medical needs. Amendment here would be futile. The court will grant

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defendant’s motion to strike plaintiff’s amended complaint.

The allegations do not suggest that HDSP staff was deliberately

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c. Other outstanding motions

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As the court will grant defendant’s motion for summary judgment, the court will deny

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plaintiff’s “motion to deny defendant’s motions,” (ECF No. 48), and defendant Aranas’s motion

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to dismiss, (ECF No. 48), as moot.

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IV.

Conclusion

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Plaintiff has failed to provide evidence to support his conclusory assertion that HDSP staff

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were deliberately indifferent to his medical needs. The court will grant defendant Aranas’s motion

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for summary judgment.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant Aranas’s

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motion for summary judgment (ECF No. 15) be, and the same hereby is, GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s motion to extend time to file a response to

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defendant’s motion for summary judgment (ECF No. 34) be, and the same hereby is, GRANTED.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that defendant Aranas’s motion to dismiss (ECF No. 48) be,
and the same hereby is, DENIED as moot.

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IT IS FURTHER ORDERED that plaintiff’s “motion to deny defendant’s motions,

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oppositions, replies, and request for Jury Trial” (ECF No. 53) be, and the same hereby is, DENIED

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as moot.

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IT IS FURTHER ORDERED that defendant Aranas’s motion to strike plaintiff’s amended
complaint (ECF No. 65) be, and the same hereby is, GRANTED.
DATED February 27, 2018.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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