Tingley v. Nevada Department of Corrections et al

Filing 84

ORDER accepting and adopting in part ECF No. 80 Report and Recommendation; granting ECF No. 66 Motion for Summary Judgment with respect to the deliberate indifference claims against Hoffman, McCullah, and Perry. The Court will set a hearing to address the R&R's recommendation relating to the statute of limitations as applied to the claim against Bannister. Signed by Judge Miranda M. Du on 9/29/2016. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

ADAM WYNN TINGLEY,

Case No. 3:14-cv-00358-MMD-VPC

10

Plaintiff,
v.

11
12

NEVADA DEPARTMENT OF
CORRECTIONS, et al.,

13

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

14
15

I.

SUMMARY

16

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

17

Judge Valerie P. Cooke (ECF No. 80) (“R&R”) relating to Defendants’ Motion for

18

Summary Judgment (“Motion”) (ECF No. 66). The Court has reviewed Plaintiff’s

19

objection (ECF No. 81) and Defendants’ response (ECF No. 83). The Court grants

20

Plaintiff’s motion to supplement his objection to the R&R (ECF No. 82) in order to

21

consider the recently decided Supreme Court decision of Ross v. Blake, 136 S.Ct. 1850

22

(2016).

23

II.

BACKGROUND

24

Plaintiff was formerly an inmate in the custody of the Nevada Department of

25

Corrections (“NDOC”). He brings this action pursuant to 42 U.S.C. § 1983, alleging that

26

NDOC and Warm Springs Correctional Center (“WSCC”) officials violated his Eighth

27

Amendment right against cruel and unusual punishment by denying Plaintiff timely

28

medical treatment between the years of 2004 and 2014. The Court ultimately permitted

1

Plaintiff to proceed on a claim of Eighth Amendment deliberate indifference to a serious

2

medical need against former NDOC Medical Director Dr. Bruce Bannister (“Bannister”),

3

WSCC Nurse Susan Hoffman (“Hoffman”), WSCC Nurse Kerry McCulllah (“McCullah”),

4

and WSCC Director of Nursing Jonathan Perry (“Perry”). The relevant background facts,

5

which the Court adopts, are set out in the R&R. (ECF No. 80.)

6

III.

LEGAL STANDARD
Review of Magistrate Judge’s Ruling

7

A.

8

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

9

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

10

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

11

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

12

recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiffs’

13

objection, the Court has engaged in a de novo review to determine whether to adopt

14

Magistrate Judge Cooke’s recommendation.

15

B.

16

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

17

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

18

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

19

pleadings, the discovery and disclosure materials on file, and any affidavits “show there

20

is no genuine issue as to any material fact and that the movant is entitled to judgment as

21

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is

22

“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could

23

find for the nonmoving party and a dispute is “material” if it could affect the outcome of

24

the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

25

(1986). Where reasonable minds could differ on the material facts at issue, however,

26

summary judgment is not appropriate. See id. at 250-51. “The amount of evidence

27

necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to

28

resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718

Summary Judgment

2

1

F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S.

2

253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts

3

and draws all inferences in the light most favorable to the nonmoving party. Kaiser

4

Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

5

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

6

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

7

the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting

8

the motion to “set forth specific facts showing that there is a genuine issue for trial.”

9

Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the

10

pleadings but must produce specific evidence, through affidavits or admissible discovery

11

material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404,

12

1409 (9th Cir. 1991), and “must do more than simply show that there is some

13

metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th

14

Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

15

(1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position

16

will be insufficient.” Anderson, 477 U.S. at 252.

17

IV.

DISCUSSION

18

The Magistrate Judge recommends granting Defendants’ Motion on three bases:

19

(1) the statute of limitations bars certain of Plaintiff’s claim against Bannister; (2) during

20

the relevant limitations period, Bannister was not deliberately indifferent to Plaintiff’s

21

serious medical needs;1 and (3) Plaintiff has failed to exhaust his claims as they relate to

22

post-operative care under the Prison Litigation Reform Act (“PLRA”). (ECF No. 80.)

23

Plaintiff’s

24

recommendation. The Court agrees with the Magistrate Judge’s recommendation to

25

dismiss Plaintiff’s deliberate indifference claims regarding post-operative care against

26

///

27
28

objection

addresses

all

three

1

bases

of

the

Magistrate

Judge’s

The Court agrees with the Magistrate Judge’s analysis but the Court’s ruling on
the applicability of the continuing violation doctrine may affect the deliberate indifference
claim against Bannister.
3

1

Hoffman, McCullah, and Perry for failure to exhaust administrative remedies. However,

2

the Court requires oral argument to determine whether the continuing violations doctrine

3

applies to Plaintiff’s deliberate indifference claim against Bannister.

4

A.

Statute of Limitations and the Continuing Violation Doctrine

5

The R&R recommends that the Court bar certain of Plaintiff’s claim against

6

Bannister based upon the statute of limitations. (ECF No. 80 at 5.) Because Defendants

7

acknowledged that Plaintiff exhausted his available administrative remedies on the issue

8

of delayed surgeries, the Magistrate Judge added the 178 days that Plaintiff spent

9

exhausting remedies to the two-year statute of limitations to bar those claims occurring

10

prior to January 10, 2012. (ECF No. 80 at 9-10.) In his objection, Plaintiff disagrees with

11

the Magistrate Judge’s finding that each date of the UR Panel’s decision triggered a

12

running of the statute of limitations. (ECF No. 81 at 4.) Plaintiff argues the record shows

13

that Bannister in his role on the UR Panel allowed Plaintiff to “languish in pain and

14

relative blindness for years whilst [Plaintiff] waited for surgery.” (Id.)

15

Claims brought under 42 U.S.C. § 1983 are governed by the forum state’s

16

limitations period for personal injury. Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001).

17

In Nevada, the statute of limitations governing a personal injury claim is two years. Reed

18

v. Nev. Dep’t of Corr., No. 3:14-cv-00313-MMD-VPC, 2015 WL 5092692, at *5 (Aug. 27,

19

2015). “Although state law determines the length of the limitations period, federal law

20

determines when a civil rights claim accrues.” Morales v. City of Los Angeles, 214 F.3d

21

1151, 1153-54 (9th Cir. 2000). A § 1983 claim “accrues for limitations purposes when the

22

plaintiff knows or has reason to know of the injury that is the basis of the action.” Knox,

23

260 F.3d at 1013. Moreover, because the PLRA, 42 U.S.C. § 1887e(a), requires inmates

24

to exhaust their claims, the statute of limitations is tolled pending completion of the

25

grievance process. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005);

26

Wisenbaker v. Farwell, 341 F. Supp. 2d 1160, 1165 (D. Nev. 2004).

27

The Magistrate Judge found that Plaintiff’s deliberate indifference claim against

28

Bannister accrued for limitations purposes after each decision by the UR Panel. (ECF
4

1

No. 80 at 8.) In particular, Plaintiff identified the following decisions between 2004 and

2

2006 that involved Bannister’s participation:

3

a. On September 10, 2004[,] Dr. Scott referred the Plaintiff for surgery . . . .
This request was disapproved by the UR Panel on September 14, 2004.

4

b. On December 21, 2004, Dr. Gedney referred the Plaintiff for eye surgery
. . . . The UR Panel did not respond to this request in the document in
Plaintiff’s possession[.]

5
6
8

c. On April 5, 2006, Dr. Gedney again referred the plaintiff for surgery . . . .
The UR panel approved the request, but directed the surgery to occur after
July 1, 2006. On the same document, the Plaintiff’s discharge date is noted
as June 3, 2006, before his surgery was to be scheduled.

9

(ECF No. 73 at 6 (internal citations omitted).) The UR Panel made the following

7

10

decisions between 2008 and 2013:

11

a. On June 26, 2008, Dr. Gedney requested UR Panel approval for the
Plaintiff to see Dr. Komadina . . . . The UR Panel disapproved this request
on July 15, 2008 without explanation.

12
13

b. On January 29, 2010, Dr. Aranas requested UR Panel approval for the
Plaintiff to see an ophthalmologist. The UR Panel responded on March 2,
2010 by directing that the Plaintiff be transferred to NNCC to be seen by
Dr. Fischer.

14
15

c. On March 4, 2014, “V. VanHornal” requested that the Plaintiff be referred
to Dr. Fischer due to his pterygium. The UR Panel responded on March 12,
2013 by approving the request.

16
17

d. On June 19, 2013, Dr. Gedney then requested that the Plaintiff be
referred to Dr. Komadina for his failed pterygium surgery. The UR Panel
responded on June 25, 2013 by deferring the request back to Dr. Gedney.
On September 23, 2013, Dr. Gedney responded by stating, “I am not an
eye specialist UR needs to send [patient] to Dr. Komadina or deny it.”

18
19
20
21

(Id. at 9 (internal citations omitted).) The Magistrate Judge, however, found that Plaintiff’s

22

challenge stems from “discrete acts” based pon each UR Panel decision and,

23

accordingly, the continuing violation doctrine does not apply to toll the statute of

24

limitations. (ECF No. 80 at 8-9.) However, it is not as evident to the Court that the

25

continuing violation doctrine does not apply, particularly in light of the Ninth Circuit Court

26

of Appeals’ finding in Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014), that NDOC’s

27

“one eye policy” was the paradigm of deliberate indifference.

28

///
5

1

The continuing violation doctrine applies to § 1983 actions, including claims of

2

deliberate indifference, and allows a plaintiff to seek relief for events outside of the

3

limitations period. See Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). The doctrine

4

holds that where a violation is ongoing in nature, the statute of limitations does not begin

5

to run until the wrongful conduct ends. Flowers v. Carville, 310 F.3d 1118 1126 (9th Cir.

6

2002). There are two ways in which a plaintiff may establish a continuing violation. First,

7

the plaintiff may highlight a series of related acts against one individual, of which at least

8

one falls within the relevant period of limitations. Douglas v. California Dept. of Youth

9

Authority, 271 F.3d 812, 822 (9th Cir. 2001) (citing Gutowsky v. County of Placer, 108

10

F.3d 256, 259 (9th Cir. 1997)). Second, a plaintiff may demonstrate that there is a

11

“systematic policy or practice of discrimination that operated, in part, within the

12

limitations period,” such as a systemic violation. See id. (citing Morgan v. Nat’l RR

13

Passenger Corp., 232 F.3d 1008, 1015-16 (9th Cir. 2000)). Thus, application of the

14

continuing violation doctrine in the context of deliberate indifference claims requires a

15

fact-specific analysis. See, e.g., Evans v. County of San Diego, No. 06-CV-0877, 2008

16

WL 842459 at *12 (S.D. Cal. Mar. 27, 2008) (applying the continuing violation doctrine to

17

plaintiff’s deliberate indifference claim, which was not based on plaintiff’s original injury

18

but instead was based on the defendants’ ongoing failure to treat the injury); see also

19

Watson v. Sisto, No. 2:07-cv-01871, 2011 WL 533716 at *5 (E.D. Cal. Feb. 14, 2011)

20

(applying continuing violation doctrine to plaintiff’s claim that the prison health system as

21

administered by doctors and staff, consistently failed to provide adequate medical care

22

for plaintiff’s back condition).

23

While the alleged deliberate indifference conduct ended in Plaintiff’s case when

24

he received the second surgery in 2014, it is unclear from the record whether the delays

25

in receiving this surgery were the result of a systemic policy. The UR Panel’s decisions

26

cited above do not provide a reason for denying Plaintiff’s request. It is not clear based

27

on the record before the Court whether the UR Panel’s decisions were based on

28

NDOC’s policy that “one eye is good enough for prison inmates” and required “blanket,
6

1

categorical denial[s] of medically indicated surgery.” See Colwell, 763 F.3d at 1063. If

2

the basis for delaying and denying Plaintiff’s second eye surgery until 2014 was this

3

policy, then the continuing violation doctrine may apply to permit the claim against

4

Bannister to proceed. Accordingly, the Court determines that oral argument on the

5

application of the continuing violation doctrine will assist the Court in addressing

6

Defendants’ statute of limitations argument.

7

B.

8

The R&R recommends that the Court find that Plaintiff failed to exhaust available

9

administrative remedies relating to the issue of his post-operative treatment. (ECF No.

10

80 at 18.) Under the PLRA, a § 1983 claim may not be brought by a prisoner until he has

11

exhausted all available administrative remedies. 42 U.S.C. § 1997e(a). Exhaustion

12

requires that an inmate use all procedures the prison “holds out,” Griffin v. Arpaio, 557

13

F.3d 1117, 1119 (9th Cir. 2009), including compliance with agency deadlines and other

14

critical procedural rules, Woodford v Ngo, 548 U.S. 81, 90-91 (2006). The level of detail

15

required in an administrative grievance is determined by the prison’s applicable

16

procedures. Morton v. Hall, 599 F.3d 942, 926 (9th Cir. 2010).

Failure to Exhaust under PLRA and Ross v. Blake

17

In Plaintiff’s objection, he argues that he did, in fact, exhaust the administrative

18

remedies under NDOC’s grievance process because he raised the issue of his post-

19

operative treatment in a second-level grievance. (ECF No. 81 at 10, 13.) By raising the

20

issue of post-operative care for the first time in a second-level grievance, Plaintiff did not

21

conform to the requirements under NDOC’s Administrative Regulation (“AR”) 740.2 While

22
23
24
25
26
27
28

2

NDOC’s grievance process for medical claims is governed by AR 740 and has
three levels. First, an inmate must file an informal grievance within six months of the
claim. AR 740.04, 740.05(4). Prison officials must respond to the informal grievance
within 45 days. AR 740.05(4). If an inmate is dissatisfied with the informal response, he
may appeal to the first formal level within five days. Id. At the first formal level, the
inmate must “provide a signed, sworn declaration of facts that form the basis for a claim
that the informal response is incorrect,” and attach “additional relevant documentation.”
AR 740.06(2). The first level formal grievance is then reviewed by a high level official
and decided within forty-five days. AR 740.06(10), (4). The inmate may appeal the highlevel official’s decision within five days of receiving the official’s response. AR 740.07(1).
In response to this second-level formal grievance, an official must respond within 60
days specifying the reasons for the decision reached. AR 740.07(3), (4). At that point,
the inmate is considered to have exhausted all available administrative remedies.
7

1

the Court finds that AR 740 provides little guidance as to the factual specificity required

2

of an inmate when filing a grievance (ECF Nos. 80 at 17 & 81 at 11-12), Plaintiff is wrong

3

that the lack of guidance in the AR made it impossible for Plaintiff to file a separate

4

grievance regarding the issue of post-operative care. ( ECF No. 82 at 3.)

5

When an administrative grievance procedure is silent or incomplete as to how

6

specific an inmate must be, a grievance will suffice if it puts the prison on notice of the

7

nature of the wrong and what remedy is sought by the inmate. See Griffin, 557 F.3d at

8

1120. The informal grievance Plaintiff filed on October 26, 2013, identified a failure to

9

receive medically necessary eye surgery, requested a second eye surgery, and asked

10

that Plaintiff remain in close proximity to the physician performing that surgery until the

11

surgery occurred. (ECF No. 66-12 at 16-17.) In the first-level grievance, Plaintiff

12

requested surgery once again and added that he also receive whatever post-operative

13

care his physician recommended (including UV sunglasses), that he not be retaliated

14

against for making a deliberate indifference claim, and that he receive compensation for

15

NDOC’s failure to grant him a second eye surgery. (Id. at 10-11.) After his surgery,

16

Plaintiff filed a second-level grievance regarding the initial delay in receiving this second

17

eye surgery and Plaintiff’s continued need to receive post-operative care, including pain

18

medicine and eye drops. (ECF No. 66-13 at 3.) The response to this grievance by prison

19

officials did not make reference to the post-operative request for eye drops because, as

20

Defendants contend, it was not raised initially as an issue in the first informal grievance,

21

which is required under AR 740. (ECF. No. 81 at 10.) More specifically, the request for

22

eye drops in the second-level grievance does not state the nature of any wrong done to

23

the Plaintiff. According to the grievance itself, the wrong to Plaintiff was the failure to

24

receive surgery and medical care in a timely fashion. (ECF No. 66-12 at 5.) It appears

25

his request to receive continued medical care after his second surgery was an additional

26

remedy requested for the specific wrong of delayed surgery. However, Plaintiff’s Eighth

27

Amendment claims against Hoffman, McCullah, and Perry are their failure to provide the

28

correct prescription and dosage of eye drops in a timely manner, which is a separate
8

1

wrong that was not clearly raised by Plaintiff in any stage of the grievance process.

2

Thus, the Court agrees with the Magistrate Judge’s finding that Plaintiff did not exhaust

3

his administrative remedies with respect to these Defendants.

4

In the alternative, Plaintiff argues that the circumstances of his situation rendered

5

administrative remedies effectively unavailable. (ECF No. 81 at 13-14.) In his Objection,

6

Plaintiff highlights that under the PLRA the very notion of an internal grievance process

7

is absurd given that inmates must submit grievances for review to the very prison

8

officials who they are filing grievances against. (Id. at 4.) First, because Plaintiff’s

9

assertion assumes an inherent conflict of interest in the framework of the PLRA, it does

10

not in-and-of-itself present a justiciable matter for this Court. Second, Plaintiff’s potential

11

grievance pertains to medical personnel affiliated with the prison, not the behavior of the

12

reviewing officials, so the conflict of interest presumption does not automatically apply.

13

Additionally, Plaintiff attempts to argue that all three manifestations of “unavailability” in

14

Ross apply to make exhaustion “unavailable” in his case.3 (ECF 82 at 3.) The Court,

15

however, does not find the circumstances of Plaintiff’s situation to meet the definition of

16

“unavailability” in any of the instances identified by the Supreme Court in Ross.

17

In Ross v. Blake, the Supreme Court found three kinds of circumstances in which

18

an “administrative remedy, although officially on the books, is not capable of use” by an

19

inmate to obtain relief. Ross, 136 S.Ct. 1850. The first is where the administrative

20

procedure is a dead end because officers are unwilling to provide any relief to aggrieved

21

inmates. Id. at 1859. While subjectively Plaintiff may have been afraid that filing an

22

informal grievance related to the failure of certain medical personnel to provide him the

23

correct and timely post-operative eye drops would subject him to discipline (ECF No. 82

24

at 3), it is clear that the prior grievance Plaintiff filed was addressed. Thus, it is not

25

absolutely the case that the grievance process at NDOC is a dead end because Plaintiff

26
27
28

3

Plaintiff filed a Motion to Supplement his Objection to include the recently
decided Supreme Court decision of Ross v. Blake, 84 USLW 4352, which addresses
three ways in which an administrative procedure may be unavailable for exhaustion
purposes under the PLRA. (ECF No. 81 at 13-14 & 82 at 2-3.)
9

1

had his second eye surgery, which is the remedy Plaintiff requested in his October 2013

2

informal grievance. Furthermore, medical records submitted by Defendants show that

3

Plaintiff did receive post-operative care (ECF Nos. 67-2, 67-3, 67-5, 67-6, 67-7), as

4

requested in the first- and second-level grievances he filed (ECF No. 66-13 at 3).

5

The second circumstance in which an administrative remedy is effectively

6

unavailable is where the administrative scheme is “so opaque that it becomes, practically

7

speaking, incapable of use” such that “no ordinary prisoner can navigate it.” Ross, 136

8

S.Ct. at 1859. While the Court agrees with both the Magistrate Judge and Plaintiff that

9

the specificity requirement under AR 740 is not clearly defined, which may in turn make it

10

difficult to understand, the administrative process itself is not so opaque that no ordinary

11

prisoner could use it. In fact, Plaintiff used the procedure to file a grievance and was

12

notified when he failed to comply with particular requirements of the grievance process.

13

(ECF No. 67-1 at 4.) Furthermore, Congress has determined that when an administrative

14

process is susceptible to multiple reasonable interpretations, which Plaintiff admits is

15

possible here (ECF No. 81 at 12), the inmate still must err on the side of exhaustion.

16

Ross, 136 S.Ct. at 1859.

17

Finally, the third circumstance in which an administrative remedy is effectively

18

unavailable is when prison administrators thwart inmates from taking advantage of it

19

through machination, misrepresentation, or intimidation. Id. at 1860. The Supreme Court

20

references cases where prison officials devise procedural systems that are impossible

21

for all but the most skilled prisoners to comply with or instances where officials have

22

misled or threatened individual inmates in order to prevent their use of otherwise proper

23

procedures. Id. By contrast, Plaintiff has used the grievance procedure without any

24

identified hindrances; in fact, officials gave Plaintiff instructions on how to properly

25

comply with the grievance procedure when he mistakenly filed the wrong form. And while

26

Plaintiff’s grievance was denied, the remedy sought was actually granted. Plaintiff

27

highlights a subjective concern with potential discipline because of the ambiguity of a

28

term in the written policy. But he does not identify any threats from prison officials that if
10

1

he filed a grievance about the failure to receive his post-operative eye drops he would be

2

punished. Thus, the Court cannot find that the administrative procedures were effectively

3

unavailable under the parameters of Ross.

4

V.

5

CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

6

Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 80) be accepted and

7

adopted in part. It is adopted with respect to the Magistrate Judge’s finding that Plaintiff

8

failed to exhaust his administrative remedies with respect to claims against Hoffman,

9

McCullah and Perry. Defendants’ Motion for Summary Judgment (ECF No. 66) is

10

granted with respect to the deliberate indifference claims against Hoffman, McCullah,

11

and Perry.

12
13
14
15

The Court will set a hearing to address the R&R’s recommendation relating to the
statute of limitations as applied to the claim against Bannister.
DATED THIS 29th day of September 2016.

16
17

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28
11