Currie v. Bannister, et al.

Filing 59

ORDER that the Report and Recommendation ECF No. 58 is REJECTED and the Motion for Summary Judgment ECF No. 52 is GRANTED. It Is Further Ordered that the Clerk enter judgment and close the case. Signed by Judge Robert C. Jones on 02/21/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
______________________________________
)
)
KEITH CURRIE,
)
)
Plaintiff,
)
)
vs.
)
)
ROBERT BANNISTER et al.,
)
)
Defendants.
)
)

3:14-cv-00501-RCJ-VPC
ORDER

12
13

Plaintiff Keith Currie is an inmate in the custody of the Nevada Department of

14

Corrections. He sued Defendants in this Court under 42 U.S.C. § 1983 for violations of the

15

Eighth Amendment. Upon screening under 28 U.S.C. § 1915A, the Court permitted the claims

16

to proceed against two of three Defendants, but dismissed the third Defendant for failure to

17

allege his personal participation. (See Order 7, ECF No. 6). Defendants filed the present motion

18

to dismiss or for summary judgment, and the Magistrate Judge has recommended denying the

19

motion. The Court respectfully disagrees and will grant summary judgment to the remaining

20

Defendants. The Court will not recount the allegations or evidence as recited by the Magistrate

21

Judge, except as relevant to the Court’s disagreements.

22
23

The Court begins by finding that the complaint over the prescription of oral antibiotics
versus intravenous antibiotics is a claim of medical negligence not cognizable under the Eighth

24
1 of 4

1

Amendment. See Walker v. Benjamin, 293 F.3d 1030, 1038 (7th Cir. 2002). And although a

2

meaningful delay in providing any antibiotics at all to treat a known infection could support a

3

claim of deliberate indifference if the delay is intentional or reckless, the Court finds there is no

4

evidence adduced supporting such a conclusion here.

5

Although the Court respectfully disagrees that there is a genuine issue of material fact as

6

to delay in treatment via antibiotics, the fault for the confusion lies with Defendants, not with the

7

Magistrate Judge. Defendants state in their motion that there was no sign of infection on

8

September 12, 2012, but that a culture returned positive for staphylococcus (“staph”) on October

9

9, 2012, and the antibiotic Cipro was then started immediately. The evidence cited doesn’t

10

support that sequence of events, however, see infra, which is why the Magistrate Judge suggests

11

there are genuine issues of material fact concerning when Defendants knew of the infection and

12

when they provided antibiotics. The evidence does not, however, present any genuine issue of

13

material fact the resolution of which is necessary to determine the claim. Defendants state that

14

there was no sign of infection on September 12, 2012, but the medical notes cited by Defendants

15

themselves in fact indicate that a culture retuned positive for staph and pseudomonas on that date

16

and that Cipro had been started “yest,” likely meaning “yesterday,” i.e., September 11, 2012.

17

Defendants state that a culture returned positive for staph on October 9, 2012. The medical notes

18

show that to be true, but the notes are also clear that an earlier culture had returned positive for

19

staph on September 12, 2012 and that Cipro had in fact been prescribed. The October 10, 2012

20

notes also show that Plaintiff “started Abx yest,” probably because the second culture (which

21

Defendants have apparently wrongly identified as the only culture) indicated staph was still

22

present, meaning that the Cirpo had been ineffective. Defendants have satisfied their initial

23
24
2 of 4

1

burden on summary judgment to show that they would be entitled to a directed verdict on the

2

deliberate indifference issue based on this evidence.

3

Plaintiff does not adduce any evidence to create a genuine issue of material fact as to

4

deliberate indifference, i.e., delay of treatment. The only evidence he adduces material to the

5

issue is the Complaint itself (which is verified). Therein, he alleges that he was prescribed an

6

antibiotic on September 12, 2012. He also alleges Defendants knew about the staph-positive lab

7

results on September 9, 2012. The medical records indicate explicit knowledge of a staph

8

infection only as of September 12, 2012 and at most imply knowledge as of September 11, 2012

9

(if one also accepts that antibiotics were started the same day, negating any deliberate

10

indifference claim). The only evidence indicating Defendants’ knowledge of the staph infection

11

on September 9, 2012 is Plaintiff’s own conclusory testimony. Plaintiff may be assuming based

12

on a lab report that his treating physician saw the report on the same day it was issued

13

(September 9, 2012), but no evidence in the record supports that conclusion, and Plaintiff does

14

not appear to repeat it in his table of facts in his opposition to the present motion. No lab report

15

is adduced, much less evidence of any Defendant’s same-day knowledge of its contents.

16

In summary, Plaintiff has failed to adduce any evidence creating a genuine issue of

17

material fact as to whether his antibiotic treatment was maliciously or indifferently delayed, and

18

the medical choice to treat him orally rather than intravenously does not support an Eighth

19

Amendment claim. Nor does the Court find that delay in providing Plaintiff with a wheelchair

20

cushion or air mattress is sufficient to make out a deliberate indifference claim. Plaintiff’s

21

argument that Defendants’ failure to follow “the accepted regimen” in this regard (according to

22

guidelines promulgated by the Department of Health and Human Services) constituted deliberate

23

indifference only goes to show that the claim in fact sounds in medical negligence. The evidence

24
3 of 4

1

is undisputed that “wet to dry” dressings were ordered, later followed by “duoderm” dressings,

2

when Plaintiff presented with the problem in August 2012. Treatment by this method was an

3

issue of medical discretion.

4

CONCLUSION

5

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 58) is

6

REJECTED, and the Motion for Summary Judgment (ECF No. 52) is GRANTED.

7

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

8

IT IS SO ORDERED.

9

Datedthis 7th day of December, 2016.
Dated this 21st day of February, 2017.

10
11
12

_____________________________________
ROBERT C. JONES
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
4 of 4