Toavs v. Bannister et al

Filing 81

ORDER ADOPTING AND ACCEPTING REPORT AND RECOMMENDATION - # 73 Report and Recommendation is accepted and adopted in its entirety. Defendants' # 47 Motion for summary judgment is granted in part and denied in part as specified herein. Pl aintiff's # 60 Cross-motion for summary judgment is denied. Further ordered that Plaintiff's # 78 Motion to strike is granted : Defendants' # 77 Response to Plaintiff's objections and Plaintiff's # 79 Response to Defendants response to Plaintiff's objections are stricken. Signed by Judge Miranda M. Du on 3/31/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BERTON G. TOAVS,
Plaintiff,

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Case No. 3:12-cv-00449-MMD-WGC

v.

ORDER ADOPTING AND ACCEPTING
REPORT AND RECOMMENDATION

ROBERT BANNISTER, et al.,

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Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (“R&R”) (dkt. no. 73) relating to Defendants’ motion for summary

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judgment (dkt. no. 47) and Plaintiff’s cross-motion for summary judgment (dkt. no. 60).

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Plaintiff filed a timely objection on February 17, 2015 (dkt. no. 76) and Defendants filed

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a response (dkt. no. 77). Plaintiff filed a motion to strike Defendants’ response (dkt. no.

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78) and also filed a response to Defendants’ response (dkt. no. 80).

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First, with regard to Plaintiff’s motion to strike, Defendants concede that they filed

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their response to Plaintiff’s objections one day late. (Dkt. no. 79.) Defendants provide no

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reason for the late filing but argue that Plaintiff was not prejudiced. Defendants are

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responsible for obeying the Court’s filing deadlines or requesting an extension. The

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Court will therefore grant Plaintiff’s motion to strike and strike Defendants’ response. As

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Defendants point out, LR IB 3-2 governs the filing procedure for objections to a

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magistrate judge’s report and recommendation. That rule also states that an objection

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may be filed and a response to that objection may be filed, but it does not allow for any

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further response. Plaintiff has filed a response to Defendants’ response to Plaintiff’s

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objections. (Dkt. no. 80.) Plaintiff has not requested, nor been given permission, to file

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an additional response and it is procedurally improper pursuant to LR IB 3-2. It is

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therefore stricken as well.1
With those issues resolved, the Court turns its attention to Plaintiff’s objections.

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II.

BACKGROUND

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The facts of this case are thoroughly set out in the R&R. At all relevant time,

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

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(Dkt. no. 5.) The allegations in Plaintiff’s Complaint concern events that occurred while

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Plaintiff was housed at Northern Nevada Correctional Center (“NNCC”). (Id.) Plaintiff is

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pro se. He asserts claims under 42 U.S.C. § 1983 for deliberate indifference to his

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medical needs in violation of the Eighth Amendment.

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III.

STANDARD OF REVIEW

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1).

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the

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pleadings, the discovery and disclosure materials on file, and any affidavits “show[ ] that

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there is no genuine dispute as to any material fact and the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

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317, 322–23 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on

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which a reasonable fact-finder could find for the nonmoving party and a dispute is

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The Court notes, however, that it has reviewed the stricken filings and they do
not affect the outcome of this Court’s decision.
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“material” if it could affect the outcome of the suit under the governing law. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where reasonable minds could differ

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on the material facts at issue, however, summary judgment is not appropriate. Id. at

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250–51. “The amount of evidence necessary to raise a genuine issue of material fact is

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enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at

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trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l

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Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968)). In evaluating a

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

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most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc.,

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793 F.2d 1100, 1103 (9th Cir. 1986). Courts must also liberally construe documents

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filed by pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

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The moving party bears the burden of showing that there are no genuine issues

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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). “In

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order to carry its burden of production, the moving party must either produce evidence

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negating an essential element of the nonmoving party's claim or defense or show that

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the nonmoving party does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210

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F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's

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requirements, the burden shifts to the party resisting the motion to “set forth specific

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facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The

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nonmoving party “may not rely on denials in the pleadings but must produce specific

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evidence, through affidavits or admissible discovery material, to show that the dispute

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exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “‘must do

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more than simply show that there is some metaphysical doubt as to the material facts.’”

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Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir.2002) (quoting Matsushita Elec. Indus.

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Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla

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of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S.

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at 252.
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IV.

DISCUSSION

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In the R&R, the Magistrate Judge first determined that some of the Complaint’s

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claims were outside of the applicable statute of limitations. He thus restricted the

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Complaint to the following claims that allegedly took place in the two year period

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preceding the filing of the Complaint: “(1) that in November 2010, he began to

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experience severe pain, numbness and a lack of mobility in his hands and arms and

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Defendants ignored his requests until he filed a lawsuit in state court; (2) Defendants

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eventually approved the necessary surgery, but five days after, they knowingly deprived

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him of pain medication in contravention of his surgeon's orders, and he was denied

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requests for physical therapy which would have maximized his recovery; (3) he began

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to experience extreme pain and lack of mobility a year after this surgery, and his

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requests for medical care were ignored; (4) his surgeon requested one more surgical

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procedure, but Defendants would not approve it; (5) (from October 2010 forward) Dr.

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Bannister had a policy of encouraging staff to deprive inmates of care due to the cost or

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the inmate's particular conviction, and also failed to train and supervise his employees;

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(6) Dr. Bannister, Dr. Mar and Dr. Johns, as members of the Utilization Review Panel

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(“URP”), purposefully deprived him of surgeries (from October 16, 2010 forward) due to

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the cost; (7) John Peery oversaw the nursing department, and under his direction, sick

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call appointments rarely were scheduled, and when they did occur, they were set out

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too far; and (8) John Peery ignored his requests for a visit with the eye doctor despite

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doctors' orders which acknowledged a change in his vision following his last surgery.”

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(Dkt. no. 73 at 6-7.) Plaintiff does not object to the R&R’s determination of the

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applicable statute of limitations period and the limiting of the Complaint’s allegations to

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said period. The Court will therefore adopt the Magistrate Judge’s determination as to

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the scope of Plaintiff’s claims.

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The R&R then considered all the evidence offered by the parties as it relates to

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each of the viable claims and determined that Plaintiff’s cross-motion for summary

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judgment should be denied, and Defendants’ motion for summary judgment should be
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granted as to all claims except for Plaintiff’s allegation that John Peery ignored his

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requests for a visit with the eye doctor despite doctors' orders which acknowledged a

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change in his vision following his last surgery. Plaintiff objects to the R&R’s

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recommendation that this Court grant Defendants’ summary judgment motion in part.2

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In order to demonstrate deliberate indifference under the Eighth Amendment,

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Plaintiff must demonstrate that Defendants’ response to his serious medical need was

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deliberately indifferent by showing: (1) a purposeful act or failure to respond to a

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prisoner's pain or possible medical need; and (2) harm caused by the indifference. Jett

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v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations and citations

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omitted). The requirement of a purposeful act or failure to respond is intended to

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preclude a finding of deliberate indifference for accidents or inadvertent failures to

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provide adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 105 (1976).

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Deliberate indifference exists when a prison official "den[ies], delay[s] or intentionally

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interfere[s] with medical treatment, or it may be shown by the way in which prison

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officials provide medical care." Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir. 2013)

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(internal quotation marks and citation omitted).

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Mere negligence does not rise to an Eighth Amendment violation. Hutchinson v.

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United States, 838 F.2d 390, 394 (9th Cir. 1988). Further, a mere “difference of medical

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opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference.”

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Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (citing Jackson v. McIntosh, 90

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F.3d 330, 332 (9th Cir. 1996)). Deliberate indifference is present when a prison official

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"knows of and disregards an excessive risk to inmate health or safety; the official must

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both be aware of the facts from which the inference could be drawn that a substantial

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risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan,

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511 U.S. 825, 837 (1994).

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Plaintiff states in his objection that he “believes that these defendants should not
be granted summary judgment and the Plaintiff should be allowed to present his alleged
material facts before a jury made up of the honorable citizens of the State of Nevada.”
(Dkt. no. 76 at 10.)
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Plaintiff does not argue that any particular portion of the R&R is incorrect or

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poorly reasoned. Instead, he raises again some of the points he has previously made to

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support his claims and asks the Court to consider new issues as well.

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Plaintiff first argues that because there is no sick call available at NNCC, Plaintiff

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complained about pain in his hands, arms, and neck on December 23, 2011, but was

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not seen by his doctor until February 6, 2012. (Dkt. no. 76 at 5.) There is no evidence in

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the record to support Plaintiff’s assertion that there is no sick call at NNCC and, in fact,

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the Complaint alleges that sick call occurs once or twice a week. (Dkt. no. 5 at 7.) As

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the R&R correctly determined, there is also no evidence that Peerly had a policy of

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rarely scheduling appointments or setting them out too far. (Dkt. no. 73 at 21.) Further,

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the record shows that Plaintiff was seen on December 23, 2011, at sick call, and an

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appointment was made with Plaintiff’s neurosurgeon for February 1, 2012. (Dkt. no. 48-

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4 at 5.) In the interim, x-rays were taken (dkt. no. 65-3) and Plaintiff’s neurosurgeon

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reviewed those x-rays and determined they looked “very good” on February 6, 2012

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(dkt. no. 48-14 at 2). Plaintiff argues that he was in severe pain during this period and

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had to seek medical treatment for his pain on December 25, 2011. However, the

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records show that he was seen on December 25, 2011, for a lump in his throat. (Dkt.

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no. 65-10 at 2.) There is no evidence that Plaintiff requested pain medication during this

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period.

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Plaintiff also argues that on May 25, 2012, he was seen for severe pain in his

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neck and vision problems but his pain issues were never addressed. (Dkt. no. 76 at 6.)

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He was seen in the infirmary on that date for pain in his hands and neck, as well as

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vision problems. Although the progress notes are difficult to parse, it appears as though

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Plaintiff was referred to his outside provider and a follow-up was scheduled for June 27,

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2012. (Dkt. no. 48-4 at 6.) He was seen on July 10, 2012. (Dkt. no. 48-4 at 6-7.) On July

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10, 2012, he was prescribed ibuprofen, placed on a soft diet to help his throat, and it

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was ordered he be scheduled with the eye clinic and have neck x-rays obtained. (Id.)

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Plaintiff further asserts that prior to his release from the hospital, his

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neurosurgeon advised him that physical therapy would improve his chances of

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recovery, but he never received physical therapy. (Dkt. no. 76 at 8.) As the R&R noted,

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the discharge notes and treatment notes from his neurosurgeon do not indicate that

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physical therapy was required or advised. (Dkt. no. 73 at 18-19; dkt. no. 48-1 at 5.)

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Plaintiff does not point to any evidence to demonstrate that he informed Defendants that

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physical therapy was advised by his doctor. He only states that when he was meeting

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with Dr. Gedney after his surgery, the issue of physical therapy came up in conversation

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and he was told that NNCC does not have physical therapy and they do not refer out for

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physical therapy. (Dkt. no. 76 at 8.) Plaintiff states that Dr. Gedney told him that physical

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therapy would aid his recovery. (Id.)

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Plaintiff also raises the fact that he asked for a pain medication, Lyrica, but was

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not provided it. (Dkt. no. 73 at 6.) The records show that he asked to see Dr. Gedney on

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September 24, 2011, regarding his pain medication and was prescribed another pain

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medication, Baclofen, two days later. (Dkt. no. 71-2 at 2; dkt. no. 48-1 at 6.) On October

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17, 2011, Plaintiff sent a kite asking for Lycira because his neurosurgeon said it could

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help with some of the side effects he was experiencing with his other medication. (Dkt.

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no. 71-1 at 3.) He was instructed to go to sick call. (Id.) He entered another kite on

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December 21, 2011, requesting a replacement for Baclofen and requesting Lyrica. (Dkt.

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no. 71-1 at 4.) He was seen on December 23, 2011, at sick call, and the notes do not

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indicate any request for Lyrica on that date, and Plaintiff does not argue that he

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requested Lyrica at sick call as directed. (Dkt. no. 48-4 at 5.)

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When Judge Cobb entered the R&R, he noted that no medical records were

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submitted for the period between July 2012 and December 2013. (Dkt. no. 73 at 20.)

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Plaintiff now submits kites from that time period and argues that they demonstrate that

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Defendants continued to ignore his medical needs. (Dkt. no. 76 at 6-7.) Plaintiff filed the

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Complaint on August 20, 2012, and any issues developed after that point is outside of

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the scope of this lawsuit and the Complaint. He only submits two kites in the relevant
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time period. One, dated July 10, 2012, is a request to review his medical file. (Id., Exh.

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B.) The other, dated August 1, 2012, requests a review of his medical file and also asks

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for a follow-up appointment with Dr. Gedney and an eye doctor appointment. (Id.)

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Plaintiff’s claim about his eye doctor appointment is still viable, and any claim about

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delay in being allowed to view his medical records is outside the scope of this

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Complaint. His request for a follow-up appointment with Dr. Gedney does not raise any

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medical issues that would have required prompt addressing.

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The arguments and evidence presented in Plaintiff’s objections do not raise a

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genuine issue of material fact as to Defendants’ deliberate indifference to his medical

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needs. The Court has reviewed the R&R, as well as the records and the parties’ filings.

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The Court agrees with the Magistrate Judge’s findings and adopts the R&R in full.

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V.

CONCLUSION

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It is therefore ordered that the Report and Recommendation of Magistrate Judge

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William G. Cobb (dkt. no. 73) is accepted and adopted in its entirety. Defendants’

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motion for summary judgment (dkt. no. 47) is granted in part and denied in part.

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Plaintiff’s cross-motion for summary judgment (dkt. no. 60) is denied. Plaintiff may

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proceed on his deliberate indifference claim based on the allegation that John Peery

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ignored his requests for a visit with the eye doctor despite doctors' orders which

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acknowledged a change in his vision following his last surgery.

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It is further ordered that Plaintiff’s motion to strike (dkt. no. 78) is granted.

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Defendants’ response to Plaintiff’s objections (dkt. no. 77) and Plaintiff’s response to

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Defendants’ response to Plaintiff’s objections (dkt. no. 79) are stricken.

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DATED THIS 31st day of March 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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