Bell v. Core Civic et al

Filing 78

ORDER. IT IS ORDERED that 67 the plaintiff's motion for summary judgment is DENIED. IT IS FURTHER ORDERED that 59 the plaintiff's motion for additional discovery is DENIED. IT IS FURTHER ORDERED that 53 the defendants' motion for summary judgment is GRANTED. The Clerk of Court is directed to ENTER JUDGMENT and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 3/10/2020. (Copies have been distributed pursuant to the NEF - MR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Cameron Bell,
4

Case No.: 2:17-cv-002709-JAD-BNW

Plaintiff
Order Granting Defendants’ Motion for
Summary Judgment, Denying Plaintiff’s
Motions for Summary Judgment and for
Additional Discovery, and Closing this
Case

5 v.
6 Core Civic, et al.,
7

Defendants
[ECF Nos. 53, 59, 67]

8
9

Pro se prisoner Cameron Bell sues Core Civic, Officer McMurtrey, and Warden Janice

10 Killian for various torts arising from an incident where McMurtrey allegedly caused a door to
11 close on Bell’s neck.1 Bell moves for additional discovery,2 but I deny his request based on his
12 lack of diligence and noncompliance with procedural requirements. The parties also cross-move
13 for summary judgment on all of Bell’s claims.3 Because Bell has not produced any evidence to
14 show that McMurtrey intentionally caused his injuries, I grant summary judgment to the
15 defendants and close this case.
16

Background

17

Bell alleges that on August 9, 2017, Nevada Southern Detention Center (NDSC)

18 Corrections Officer McMurtrey let the door to the multi-purpose room door close on Bell while
19 he was passing through.4 Shortly after, Bell informed McMurtrey that he had “a major
20
21
1

22
23

ECF No. 16 (first amended complaint).

2

ECF No. 59 (motion for additional discovery).

3

ECF Nos. 53 (defendants’ motion), 67 (plaintiff’s motion).

4

ECF No. 16 at 4.

1 headache” and “need[ed] to see medical,” but McMurtrey walked away.5 Bell alleges that he
2 requested to speak to the superior officer of the shift, Sergeant Holland, and McMurtrey
3 reluctantly obliged.6 Holland escorted Bell to the medical unit and left him there to go inform
4 Captain Rice and Lieutenant Perrin of the incident.7 After reviewing the video footage for the
5 incident, Rice and Perrin told Bell that “it didn’t look intentional.”8 McMurtrey states that he did
6 not intend to hit Bell with the door and that it didn’t hit him in his neck or jaw, as Bell claimed.9
7

On the day of the alleged injury, Bell went to the medical unit and “was referred to a

8 provider for a routine health appraisal” for the next day.10 The intake form from that night shows
9 that he had swelling on the left side of his neck.11 The next day, a nurse evaluated Bell and noted
10 that he didn’t have any bruises or open areas, but that he did have swelling in his neck.12 She
11 instructed him to apply ice and prescribed Ibuprofen for four days.13
12

When Bell returned to see Dr. Craig on August 14, he was diagnosed with an infection of

13 the submandibular gland called sialadenitis.14 Dr. Craig informed Bell that his pain and swelling
14 was consistent with an infection and required antibiotics.15 Dr. Craig’s notes provide that that
15 “[t]he mechanism of injury proposed by this inmate does not fit the clinical picture,” there was
16
5
6

Id.

7

Id. at 6.
Id. at 7.

9

18

Id. at 5.

8

17

ECF No. 54-1 at 6.

19
20

22
23

Id. at 10, 18.

11

Id. at 18.

12

21

10

Id. at 15, 17.

13

Id. at 15.

14

Id. at 14.

15

Id.
2

1 “no contusion on the soft area of the neck to support his contention that this gland was the site of
2 blunt trauma.”16 Importantly, Bell was diagnosed at NSDC in March 2015 (two years before this
3 incident) with a cystic mass in his left jaw that was “movable, [had] no pain, [was] non-tender,
4 [and] slow growing for about 3 yrs.”17 Dr. Craig explained to Bell that this infection could
5 spread and require surgery, hospitalization, or lead to death, but Bell refused the antibiotics.18
6 Despite his refusal, Dr. Craig dispensed penicillin and Ibuprofen to Bell for self-administered
7 use. Bell was transferred out of NSDC on August 18, 2017, with the medication.19
8

Discussion

9

I previously screened Bell’s complaint and found that he stated plausible causes of action

10 for negligence, negligent infliction of emotional distress (NIED), and battery against McMurtrey,
11 Core Civic, and the warden under a respondeat-superior theory of liability.20 The parties cross12 move for summary judgment on all claims, and I address their arguments below. But because
13 there is no evidence that Bell served the warden, I dismiss Bell’s claims against her from this suit
14 before addressing the dispositive motions.21
15 I.

Bell’s motion for additional discovery [ECF No. 59]

16

Bell seeks additional discovery in the form of pictures that Holland allegedly took of

17 Bell’s injuries the night he was injured, video showing that Holland took the pictures, incident
18 reports, a copy of Core Civic’s insurance policy, his mental-health records, and the medical
19
20

22
23

Id.

17

Id. at 10, 19.

18

21

16

Id. at 11, 14.

19

Id. at 11, 16.

20

ECF No. 15 (screening order).

21

Id.; ECF No. 25 (returned, unexecuted summons).
3

1 records for the surgery he received on his neck.22 He vaguely asserts that this discovery is
2 material to his case—omitting any discussion on what each item may show—and argues that this
3 court should relax the procedural requirements for him because he is representing himself.23 The
4 defendants argue that Bell’s request for additional discovery is vague and untimely, noting that
5 discovery closed two months before his submitted this motion.24 The defendants add that Bell’s
6 inability to present certain evidence in opposition of their summary-judgment motion is the result
7 of his own failure to meet and confer with the defendants regarding their responses to his
8 requests.25 Magistrate Judge Weksler already considered Bell’s prior request for a 30-day
9 extension to file discovery motions, for all but the surgical records, and she denied his request
10 because he filed it 18 days after the close of discovery and the parties had already submitted their
11 motions for summary judgment.26
12

Another extension is unwarranted. The federal and local rules require parties to move for

13 an extension of a deadline no later than 21 days before the deadline and with supporting good
14 cause.27 Pro se litigants are not excused from these procedural requirements just because they
15 lack an attorney.28
16
22

17

ECF No. 59.

23

Id. See Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980) (“We decline to allow a prisoner
simply because of his incarceration to hold quite possibly groundless litigation over the heads of
18
prison administrators indefinitely.”).
19 24 ECF No. 60.
20

25

Id. at 3.

26

See id. at 5–6. Bell’s surgery occurred on June 19, 2019, after the close of discovery on April
21 17, 2019, so he could not have included these surgical records in his request for an extension.
Nonetheless, I deny his request for this discovery for the reasons discussed above.
22 27
Fed. R. Civ. P. 16(b)(b)(4); LR 26-4.
23

28

See also Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir.
2000) (pro se litigants are not excused from following court rules).
4

1

Bell’s motion also appears to be a request to delay or deny summary judgment to allow

2 further discovery under Rule 56(d). Rule 56(d) provides “a device for litigants to avoid
3 summary judgment when they have not had sufficient time to develop affirmative evidence.”29
4 To prevail on a Rule 56(d) request, the movant must show: “(1) that [she has] set forth in
5 affidavit form the specific facts that [she] [hopes] to elicit from further discovery, (2) that the
6 facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the summary
7 judgment motion.”30 A Rule 56(d) motion “may be denied where the movant has been dilatory,
8 or where the movant seeks irrelevant, speculative, or cumulative information.”31
9

Bell hasn’t established his right to this additional discovery under either Rule 56(d) or the

10 discovery rules. He fails to explain what facts the discovery will produce and how they relate to
11 the issues in this case. And his lack of diligence in pursuing this discovery weighs against
12 granting the motion and further delaying my ruling on the cross-motions for summary judgment.
13 Because the parties have submitted cross-motions for summary judgment and I find that re14 opening discovery at this point would cause undue delay, I deny Bell’s motion for additional
15 discovery.
16
17
18
19

29

20

30

21

United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002).

Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir.
2008); California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998).
31

Slama v. City of Madera, 2012 WL 1067198, *2 (E.D. Cal. March 28, 2012) (internal citations
22 omitted); see California Union Ins. Co. v. Am., 914 F.2d 1271, 1278 (9th Cir. 1990) (stating that,
under former Rule 56(f), a district court may deny a request for further discovery if the movant
23 has failed to pursue discovery in the past, or if the movant fails to show how the information
sought would preclude summary judgment).
5

1 II.

Cross-motions for summary judgment [ECF Nos. 53 and 67]

2

A.

3

The principal purpose of the summary-judgment procedure is to isolate and dispose of

Legal standard

4 factually unsupported claims or defenses.32 The moving party bears the initial responsibility of
5 presenting the basis for its motion and identifying the portions of the record or affidavits that
6 demonstrate the absence of a genuine issue of material fact.33 If the moving party satisfies its
7 burden with a properly supported motion, the burden then shifts to the opposing party to present
8 specific facts that show a genuine issue for trial.34 “When simultaneous cross-motions for
9 summary judgment on the same claim are before the court, the court must consider the
10 appropriate evidentiary material identified and submitted in support of”—and against—“both
11 motions before ruling on each of them.”35 “To establish entitlement to judgment as a matter of
12 law, a moving defendant must show that one of the elements of the plaintiff’s prima facie
13 case . . . is clearly lacking as a matter of law.”36
14

B.

15

“To recover in a negligence action, a plaintiff must demonstrate (1) that the defendant

Negligence

16 owed the plaintiff a duty of care, (2) that the defendant breached that duty, (3) that breach of the
17
18
19
20

32

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

33

Celotex, 477 U.S. at 323; Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc).

34

21

Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Auvil v. CBS
60 Minutes, 67 F.3d 816, 819 (9th Cir. 1995).

22

35

23

Tulalip Tribes of Washington v. Washington, 783 F.3d 1151, 1156 (9th Cir. 2015) (citing Fair
Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001)).
36

Delosh v. Nev. Div. of Prisoners, 2016 WL 8732517, at *6 (D. Nev. Jan. 22, 2016) (internal
quotation omitted).
6

1 duty caused harm to the plaintiff that was reasonably foreseeable, and (4) damages.”37
2 “Negligence is never presumed but must be established by substantial evidence.”38
3

Even if Bell could establish McMurtrey negligently hit him with the door, he fails to

4 show that there is a genuine fact that this impact caused his injury. Bell relies on the medical
5 evaluation forms from the day of the incident and the day after, which show that he had a
6 swollen neck, and his declaration that surveillance video and photographs will substantiate his
7 injuries.39 But Dr. Craig’s report that Bell’s inflamed glands were caused by an infection,
8 coupled with Bell’s refusal to take antibiotics and his medical records showing that he had a
9 mass on the left side of his neck for at least two years before the incident eliminate any genuine
10 issue that his neck condition was the result of a door injury.40
11

The defendants also offer a video—not of the incident—that appears to show that the

12 jail’s door closes slowly, and they argue that, because the door closes slowly, Bell had time to
13 step out of the way.41 Thus, they contend, even if McMurtrey had breached his duty, Bell can’t
14 show that the impact caused his injury, that he didn’t assume the risk by remaining in the
15
16
17

37

Butler ex rel. Biller v. Bayer, 168 P.3d 1055, 1065 (Nev. 2007).

38

D & D Tire v. Ouellette, 352 P.3d 32, 38 (Nev. 2015) (quoting Gunlock v. New Frontier Hotel
Corp., 370 P.2d 682, 684 (Nev. 1962), abrogated on other grounds by Foster v. Costco
18 Wholesale Corp., 291 P.3d 150, 156 (Nev. 2012)).
39

ECF No. 60-1 at 17, 18. Bell also offers as evidence the diagnosis and medical report from
Dr. Robert Tsou, who saw him after he was transferred to the prison in Adelanto or Victorville
20 (it’s unclear which), which states that Bell’s neck injury was consistent with his claim that he
was struck by the door. ECF No. 67 at 25. But Bell did not provide this evidence to the
21 defendants, so I do not consider it. See FRCP 37(c)(1) (“If a party fails to provide information or
identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
22 information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless.”).
19

23

40

ECF No. 54-1 at 14, 19.

41

See ECF No. 55 (manual filing of video showing the multi-purpose room closing slowly).
7

1 doorway as it slowly closed, or that Bell attempted to mitigate the risk of harm.42 Because no
2 reasonable jury could find that McMurtrey caused Bell’s neck condition, I grant summary
3 judgment to McMurtrey on Bell’s negligence claim.
4

C.

5

“A claim of negligent infliction of emotional distress requires the plaintiff to show that

NIED

6 the defendant acted negligently (i.e. breached a duty owed to plaintiff) and either a physical
7 impact . . . or, in the absence of physical impact, proof of serious emotional distress causing
8 physical injury or illness.” 43 A party can’t establish NIED without first establishing the
9 underlying negligence element.44 As explained above, Bell can’t satisfy the elements of
10 causation or damages for his negligence claim. And, even if Bell had established his negligence
11 claim, he provides no evidence to support his claim of emotional distress and resulting damages.
12 At most, the record shows that he filed a subpoena for his psychological records to show that he
13 has post-traumatic stress disorder.45 But Bell has not supplied those records. Because Bell’s
14 NIED claim fails as a matter of law, I grant summary judgment on this claim to the defendants.
15

D.

16

“To establish a battery claim, a plaintiff must show that the actor (1) intended to cause

Battery

17 harmful or offensive contact, and (2) such contact did occur.”46 “This includes even the slightest
18
19
42

20

ECF Nos. 53, 74.

43

Switzer v. Rivera, 174 F. Supp. 2d 1097, 1109 (D. Nev. 2001) (citation and quotations
omitted).
21 44
Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1178 (Nev. 2008) (affirming grant of
summary judgment to the defendant on an NIED claim when the plaintiff failed to establish that
22
the defendant was liable for negligence).
23

45

ECF No. 67 at 23, 32.

46

Switzer, 174 F. Supp. 2d at 1109 (citing Restatement (Second) of Torts, §§ 13, 18. (1965)).
8

1 intentional and unwanted exertion of force upon another individual.”47 “Additionally, the
2 plaintiff must establish that the contact actually occurred.”48 Bell argues that McMurtrey
3 intentionally and maliciously let the door close on him and delayed medical treatment to watch
4 him suffer, and that McMurtrey’s conduct was in retribution for an earlier “altercation regarding
5 a chess board and chess pieces.”49 He seeks punitive damages against McMurtrey for his alleged
6 malicious conduct.50 But he fails to submit any evidence to show McMurtrey intentionally
7 caused the door to hit him or to show that the chess incident occurred, citing merely to the
8 allegations in his complaint. Allegations in a complaint are not evidence, however, and,
9 “conclusory allegations, unsupported by facts, are insufficient to survive a motion for summary
10 judgment.”51 Additionally, there is no evidence that McMurtrey intended to let the door close on
11 Bell—McMurtrey testified it was unintentional and Bell alleges that that the officers who
12 reviewed the video stated that it didn’t look intentional.52 Because Bell can’t establish the intent
13 element for his battery claim against McMurtrey, I grant summary judgment to the defendants.
14

E.

15

Bell argues that Core Civic is liable under respondeat superior because McMurtrey

Core Civic’s liability

16 injured Bell in the course of his official duties.53 “[R]espondeat superior liability
17
18

47

19

48

Id. (citing Burns v. Mayer, 175 F. Supp. 2d 1259, 1269 (D. Nev. Nov. 30, 2001)).

49

ECF No. 67 at 6.

50

Id. at 7.

51

Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003).

20
21
22

Jaross v. Phillips, 2011 WL 3471865, at *4 (D. Nev. Aug. 9, 2011) (citing Hobbs v. State, 251
P.3d 177, 180 (Nev. 2011)).

52

See ECF No. 16; ECF No. 54-1 at 5–6; see also McDonald v. Sheriff of Carson City, 512 P.2d
774, 775 n.1 (Nev. 1973) (explaining that there can be no battery where the alleged injury23 causing conduct was accidental).
53

ECF No. 67.
9

1 attaches . . . when the employee is under the control of the employer and when the act is within
2 the scope of employment.”54 It is undisputed that Core Civic employs McMurtrey and that
3 McMurtrey was acting within the scope of his employment when Bell claims he sustained an
4 injury to his neck. But Bell hasn’t established that McMurtrey is liable under any of his three
5 tort claims, so Core Civic cannot be liable under a respondeat superior theory. Accordingly, I
6 grant summary judgment to Core Civic.
7

F.

8

Bell seeks compensatory and punitive damages against the defendants.55 But Bell has not

Compensatory and punitive damages

9 established that he is entitled to damages in this case because all of his claims fail. So I deny his
10 request for damages.
11

Conclusion

12

IT IS THEREFORE ORDERED that the plaintiff’s motion for summary judgment [ECF

13 No. 67] is DENIED.
14

IT IS FURTHER ORDERED that the plaintiff’s motion for additional discovery [ECF

15 No. 59] is DENIED.
16

IT IS FURTHER ORDERED that the defendants’ motion for summary judgment [ECF

17 No. 53] is GRANTED. The Clerk of Court is directed to ENTER JUDGMENT in favor of the
18 defendants and CLOSE THIS CASE.
19

DATED March 10, 2020.

20
_________________________________
United States District Judge Jennifer A. Dorsey

21
22
23

54

Molino v. Asher, 618 P.2d 878, 879 (Nev. 1980).

55

ECF No. 16.
10