Johnson v. Nguyen et al

Filing 59

ORDER directing Defendants to file supplement in accordance with the terms of the attached order on or before 8/12/2014, to make available to Plaintiff video footage from 7/28/2014, which depicts Plaintiff falling, if it exists, and to transport Plaintiff to the RMF for Dr. Long's next-scheduled monthly clinic. Please see attached for details. Signed by Magistrate Judge William G. Cobb on 7/29/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LAUSTEVEION JOHNSON,

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Plaintiff,

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ORDER

v.
A. NGUYEN, et. al.,

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3:12-cv-00538-MMD-WGC

Defendants.
The court issues the instant order in connection with the hearing held on Plaintiff's
Motion for Preliminary Injunction (Doc. # 41) on July 28, 2014.

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After thoroughly reviewing the record, including the briefing from the parties, the

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medical records that the court ordered Defendants to submit1, and hearing argument from the

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parties, the court has determined that the record needs to be supplemented before the court can

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issue a report and recommendation on Plaintiff's motion. Therefore, Defendants are directed to

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file a supplemental memorandum in support of their opposition to Plaintiff's motion, including

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the following:

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(A) A copy of the June 20, 2014 physical examination form, referenced by Dr. Koehn at

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the hearing, which was not submitted with Plaintiff's medical records. Plaintiff shall also be

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given an opportunity to view this record by sending a request to the warden;

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(B) A discussion regarding the administrative regulations, operational procedures,

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medical directives or other Nevada Department of Corrections guidelines which address the topic

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of the dissemination of ambulatory aids to inmates for medical purposes, the procedures for

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No medical records (or declarations) were submitted with Defendants' opposition to Plaintiff's motion.
(See Doc. # 44.) Instead, the court ordered Defendants to submit Plaintiff's relevant medical orders and also
provided them with an opportunity to file a declaration on behalf of Plaintiff's treating medical provider(s) at Ely
State Prison to address the contentions made in Plaintiff's motion. (See Doc. # 52.) Defendants submitted the
medical records under seal (Doc. # 55); however, as is discussed, infra, at least one particularly pertinent record of a
recent physical examination of Plaintiff by Dr. Koehn was not included in this submission.

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assessing whether an inmate will be given such an aid, as well as any document that discusses

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safety and security issues to be taken into account in the assessment of whether an inmate will

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receive such a device. Such documents shall be accompanied by authenticating declarations;

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(C) Defendants shall address the specific safety and security risks posed by the issuance

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of a cane or wheelchair to Plaintiff. This shall include a discussion of Plaintiff's particular

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housing classification and the risks he would pose to the institution, as opposed to a generalized

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description of the safety and security risks that may result from the issuance of these ambulatory

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aids. The discussion should be accompanied by a declaration made by a person with knowledge

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to speak on this subject;

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(D) Defendants shall address Plaintiff's arguments that he: (1) needs a cane or wheelchair

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to get around his cell; (2) to get to the showers; and (3) to be able to get to the recreational yard

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by himself;

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(E) A declaration authenticating the video footage submitted to the court in connection

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with Defendants' opposition to Plaintiff's request for a hearing on his motion. (See Doc. # 58-1).

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Defendants are also directed to afford Plaintiff an opportunity to view the video footage

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submitted to the court by sending a request to the warden.

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This supplement shall be filed and served on or before August 12, 2014.

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Defendants shall also ascertain whether video footage exists of Plaintiff from July 28,

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2014, which depicts Plaintiff falling, as Plaintiff represented at the hearing. If such footage

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exists, Defendants are to make it available for Plaintiff to view by sending a request to the

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warden. Defendants may file a motion for relief from this portion of the order if they have a good

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faith contention it would impose an unreasonable burden to conduct a search for such footage.

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Finally, at the conclusion of the hearing the court proposed that Plaintiff be referred to

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Dr. Long, an orthopedist who has contracted with NDOC to provide medical evaluation and care

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for inmates, for an evaluation of his complaints of back and knee pain and to render an opinion

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as to whether an ambulatory aid such as a cane or wheelchair (as Plaintiff has requested) is

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medically necessary. Dr. Koehn represented to the court that Dr. Long holds a monthly clinic at

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NDOC's Regional Medical Facility (RMF) and that there is a weekly bus that takes inmates from

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NDOC's various institutions to the RMF for medical care. Plaintiff agreed to this proposal and

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recognized that Dr. Long's evaluation results may be used as evidence in this case, whether they

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are in his favor or adverse to his claims. The Deputy Attorney General Representing Defendants

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stated that Defendants felt another examination was unnecessary, but nonetheless agreed to refer

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Plaintiff to Dr. Long. As such, Defendants are directed to transport Plaintiff to the RMF for

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Dr. Long's next-scheduled monthly clinic. Defendants shall then provide the results of the

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examination to the court within two weeks of the date the examination takes place. Plaintiff shall

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be permitted to view the examination results by sending a request to the warden. The court will

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then issue a report and recommendation on Plaintiff's motion.

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IT IS SO ORDERED.
July 29 , 2014

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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