Pierce v. Skoinik

Filing 104

ORDER approving and adopting 101 Report and Recommendation. IT IS FURTHER ORDERED that 95 Defendants' Motion for Summary Judgment is GRANTED. The Clerk shall enter judgment accordingly. Signed by Judge Edward C. Reed, Jr on 9/25/2012. (Copies have been distributed pursuant to the NEF - HJ)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
RENO, NEVADA

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SPENCER PIERCE,
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Plaintiff,
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vs.
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HOWARD SKOLNIK, et al.,
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Defendants.
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3:10-cv-00239-ECR-VPC
Order

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On July 18, 2012, the Magistrate Judge filed a Report and

15 Recommendation (#101) recommending that Defendants’ Motion for Summary
16 Judgment (#95) on Plaintiff’s one remaining Eighth Amendment claim for
17 deliberate indifference to serious medial needs, filed on March 20,
18 2012, be granted.

Plaintiff filed Objections (#102) on August 10,

19 2012, and Defendants their Opposition (#103) on August 14, 2012.
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The Objections are not well-taken and are overruled. We agree

21 with the Magistrate Judge that the evidentiary record conclusively
22 establishes that Defendants did not act with deliberate indifference
23 to Plaintiff’s serious medical needs, a necessary element of his
24 Eighth Amendment claim, as to Defendants Mar, Martin, and Koehn.

The

25 record establishes that these Defendants provided Plaintiff with ample
26 care, treating him approximately twenty-eight times from January 2008
27 through October 2010 and employing a range of treatments to address
28 Plaintiff’s ongoing complaints. A difference of opinion regarding the

1 appropriate course of medical treatment does not amount to deliberate
2 indifference to serious medical needs.

Jackson v. McIntosh, 90 F.3d

3 330, 332 (9th Cir. 1996).
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With regard to Defendants Brackbill, Jacobs, and Bannister, the

5 record shows that they were not involved in Plaintiff’s medical
6 treatment. Moreover, because we find that Defendants Mar, Martin, and
7 Koehn were not deliberately indifferent to Plaintiff’s medical needs,
8 Defendant Brackbill, Jacobs, and Bannister did not violate Plaintiff’s
9 constitutional rights by denying his grievances requesting to see a
10 specialist.
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Defendants

Skolnik

and

McDaniel

cannot

be

held

liable

as

12 supervisors under 42 U.S.C. § 1983 where there are no allegations
13 their knowledge of or alleged participation in the alleged violation.
14 Ortez v. Wash. Cty., State of Or., 88 F.3d 804, 809.

Moreover, even

15 if section 1983 did allow for respondeat superior liability, which it
16 does not, we have found that there was no underlying constitutional
17 violation.
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As to Plaintiff’s Objections (#102), Plaintiff cannot raise a

19 First Amendment claim for retaliation for the first time in a response
20 to a motion for summary judgment.
21 opportunity

to

amend

the

Plaintiff has been afforded ample

complaint.

Furthermore,

Plaintiff’s

22 assertion that treatment by the Iowa Department of Corrections shows
23 muscle deterioration does not create a genuine issue of material fact
24 as to the deliberate indifference by Defendants in Nevada, in light of
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overwhelming

evidence

that

Defendants

treated

Plaintiff

26 numerous occasions with numerous courses of treatment.

on

Again, a

27 difference of opinion regarding the appropriate course of medical
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1 treatment does

not amount to deliberate indifference to serious

2 medical needs.

Jackson, 90 F.3d at 332.

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Finally, Defendants Brackbill and Bannister cannot be sued in

4 their official capacities for money damages, Bank of Lake Tahoe v.
5 Bank of Am., 318 F.3d 914, 918 (9th Cir. 2003), and therefore summary
6 judgment for Defendants in their official capacities for all monetary
7 claims for relief is appropriate.

Further, Plaintiff’s request for

8 injunctive relief must be denied because we dismiss Plaintiff’s
9 underlying claim; further, Plaintiff’s request is moot in light of his
10 transfer back to the custody of the Iowa Department of Corrections.
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IT IS, THEREFORE, HEREBY ORDERED that the Magistrate Judge’s

14 Report and Recommendation (#101) is well taken and is APPROVED and
15 ADOPTED.
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IT

IS

FURTHER

ORDERED

that

Defendants’

Motion

for

Summary

17 Judgment (#95) is GRANTED.
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The Clerk shall enter judgment accordingly.

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23 DATED: September 25, 2012.
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____________________________
UNITED STATES DISTRICT JUDGE

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