Hooks v. Bannister et al

Filing 166

ORDER denying 139 Motion for Listing of Facts Not in Controversy, Pursuant to F.R.C.P. 56(c); Evidence & Contemporaneously; Show Cause or TRO/Enjoinder of Prison Brd (NRS 209.101) Ar 635 & OP 609 Approval. Signed by Magistrate Judge William G. Cobb on 6/29/15. (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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JERRY HOOKS,

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3:12-cv-00682-RCJ-WGC
Plaintiff,

v.

ORDER
Re: Doc. # 139

BRUCE BANNISTER, et. al.,

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Defendants.

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Before the court is Plaintiff’s Request for Listing of Facts Not in Controversy, Pursuant

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to F.R.C.P 56(c); Evidence & Contemporaneously; Show Cause or TRO/Enjoinder of Prison Brd

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(NRS 209.101) AR 635 & OP 609 Approval. (Doc. # 139.)1 Defendants have filed a response

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(Doc. # 140) and Plaintiff filed a reply (Doc. # 142).

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Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),

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proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Am. Compl., Doc. # 14.) The

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events giving rise to this action took place while Plaintiff was housed at Ely State Prison (ESP).

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(Id.) Defendants are Dr. Michael Koehn, Angela Gregerson, Gail Holmes, Steven Smith, Bruce

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Bannister, Harold Byrne, James Cox, Boss, Renee Baker, Sheryl Foster, and Michael Cruse.

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(Screening Order, Doc. # 35.)2

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Plaintiff was allowed to proceed with Eighth Amendment deliberate indifference to
serious medical needs claims against Dr. Koehn, Gregerson, Holmes, Smith, Bannister, Byrne,

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Refers to court’s docket number.

Service was never accepted on behalf of Boss and it does not appear that Plaintiff has served him to date;
therefore, the court has concurrently issued a recommendation that the District Judge issue a notice of intent to
dismiss pursuant to Federal Rule of Civil Procedure 4(m) for failure to serve Boss within 120 days of filing the
amended complaint.

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Cox, Boss, Baker and Foster, as well as retaliation claims against Dr. Koehn, Gregerson and

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Holmes asserted in Counts III, VII and IX, based on the following allegations:

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Plaintiff claims that Dr. Koehn confiscated his “keep-on-person” (KOP) medications,

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including those for hypertension and severe, chronic back disorders and threatened to

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discontinue all of his medications if he “continu[ed] to play lawyer.” Nurses Gregerson and

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Holmes allegedly failed to administer one part of Plaintiff’s drug regimen or another in

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retaliation for his lawsuit. Plaintiff suffered heart palpitations, headaches and chest pain as a

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result. Boss allegedly ignored an emergency grievance of which he was aware for three hours

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while Plaintiff gasped for breath and suffered chest pain. Plaintiff asserts he was finally taken to

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the infirmary and admitted and treated for ten days for an irregular heart rhythm. Nursing

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Assistant Steve Smith allegedly conspired with his supervisors to discontinue Plaintiff’s

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treatment. Plaintiff claims he suffered chest pain, headaches, and severe anxiety attacks for two

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months. Defendants Baker, Foster, Byrne, and Bannister allegedly denied grievances about the

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lack of treatment. Plaintiff also alleges that Dr. Koehn later discontinued heart medications and

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let Plaintiff suffer with agonizing tooth pain for thirty days. Dr. Koehn ordered officers to

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confiscate all Plaintiff’s prescriptions and had him placed in an isolation cell for a day; then later

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discontinued Plaintiff’s medications for two months, and then six months later discontinued his

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medications for another two months causing chest pain and anxiety. He alleges that Baker,

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Bannister and Cox denied his grievances about the discontinuation of his medications. (Doc. # 35

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at 8-11.)

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Plaintiff was also allowed to proceed with a retaliation claim against Cruse in Count V

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based on the allegation that Cruse prevented Plaintiff from getting certain personal property

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when he was transferred to ESP, in retaliation for his litigation. (Doc. # 35 at 13.)

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In this thirty-seven page motion (which exceeds the thirty-page limit for motions, L.R.

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7-4), Plaintiff references a plethora of events, people and allegations extraneous to the claims

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allowed to proceed in this action. (I.e., references to censorship of his legal education, the prison

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board of commissioners who are not parties to this action, his mental health issues, his parole

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release date, dismissed defendant Sandoval, investigation of R 635, censorship.)

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He references Federal Rule of Civil Procedure 56(c) on various occasions, without stating

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specifically what relief he seeks. Rule 56(c) states that “[a] party asserting that a fact cannot be

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or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials

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in the record...; or (B) showing that the materials cited do not establish the absence or presence

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of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

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fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). Defendants have adequately cited portions of the record in

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support of their motion for summary judgment. Therefore, Plaintiff’s request for anything further

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is DENIED.

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While the title of Plaintiff’s motion references a request for temporary restraining order,

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order to show cause or other injunctive relief, his motion does not come close to addressing the

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prerequisites for injunctive relief−likelihood of success on the merits, likelihood of irreparable

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injury, balance of hardships or public interest. See Winter v. Natural Resources Defense Council,

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Inc., 555 U.S. 7, 20 (2008) (citations omitted). Nor does it relate to the claims proceeding in this

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action. Therefore, the court will not consider it as such.

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For these reasons, Plaintiff’s motion (Doc. # 139) is DENIED.

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IT IS SO ORDERED.

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DATED: June 29, 2015.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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