Espinosa v. Bannister et al

Filing 104

ORDERED that the Report and Recommendation (ECF No. 94 ) is ADOPTED IN PART and REJECTED IN PART. Defendants' Motion for Judgment on the Pleadings (ECF No. 28 ) is DENIED. Plaintiff's Motion for Leave to File a Surreply (ECF No. [3 5]) is DENIED as moot. Plaintiff's Motion to Amend (ECF No. 33 ) is DENIED. Plaintiff's Motion to Supplement his Opposition (ECF No. 78 ) is DENIED. Plaintiff's Motions to Strike (ECF Nos. 66 , 77 ) are DENIED. Defendants' Motion for Summary Judgment (ECF No. 52 ) is GRANTED, and Plaintiffs Motion for Summary Judgment (ECF No. 72) is DENIED. Plaintiff's Motion for a Preliminary Injunction (ECF No. 56 ) and Plaintiffs Motion for Sanctions (ECF No. 89 ) are D ENIED. Plaintiff's Motion to Produce Docket Sheet (ECF No. 71 ), Motion to Produce Documents (ECF No. 76 ), and Motion for Leave to File Further Objections to Report and Recommendation (ECF No. 98 ) are DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case. Signed by Judge Robert C. Jones on 7/5/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
______________________________________
)
)
BENJAMIN W. ESPINOSA,
)
)
Plaintiff,
)
)
vs.
)
)
ROBERT BANNISTER et al.,
)
)
Defendants.
)
)

3:14-cv-00668-RCJ-VPC
ORDER

12
13

Plaintiff Benjamin Espinosa is a prisoner in the custody of the Nevada Department of

14

Corrections. His remaining claim under 42 U.S.C. § 1983 is based on Defendants’ alleged

15

deliberate indifference to his testicular pain in violation of the Eighth Amendment. The

16

Magistrate Judge has issued a Report and Recommendation (“R&R”) recommending that the

17

Court: (1) deny Defendants’ motion for judgment on the pleadings, as well as Plaintiff’s motion

18

to file a surreply thereto (as moot); (2) deny Plaintiff’s motion to amend to add a medical

19

malpractice claim; (3) grant Plaintiff’s motion to dismiss Defendants Gedney and Johns; (4)

20

deny Plaintiff’s motion to supplement his opposition to Defendants’ motion for summary

21

judgment; (5) deny Plaintiff’s motion to strike Defendants’ argument under the statute of

22

limitations; (6) grant in part Plaintiff’s motion to strike Defendants’ reply to their motion for

23

summary judgment as to the argument that Defendant Scott is protected by the statute of

24

limitations, but otherwise deny it; (7) grant Defendants’ motion for summary judgment as to the

1 of 5

1

deliberate indifference claim against Defendants Mar and Donnelly but deny it as to Defendants

2

Bannister, Poag, and Scott and deny it as moot as against Defendants Gedney and Johns; (8)

3

deny Plaintiff’s motion for a preliminary injunction; (9) deny Plaintiff’s motion for summary

4

judgment; and (10) deny Plaintiff’s motion for sanctions. The Court adopts the R&R in part but

5

respectfully rejects it in part and grants summary judgment to Defendants Bannister, Poag, and

6

Scott. The evidence produced on summary judgment cannot support a verdict of deliberate

7

indifference but shows that the dispute concerns a difference of medical opinion. There appears

8

to be no dispute that Defendants have provided treatment for Plaintiff’s medical condition by

9

way of anti-inflammatory drugs, and that Plaintiff simply would prefer stronger painkillers, such

10

as opioids. Such a dispute sounds in medical malpractice, not cruel and unusual punishment.

11

A prisoner can establish an Eighth Amendment violation arising from deficient medical

12

care if he can prove that prison officials were deliberately indifferent to a serious medical need.

13

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Assuming the medical need is “serious,” a plaintiff

14

must show that the defendant acted with deliberate indifference to that need. Id. “Deliberate

15

indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It

16

entails something more than medical malpractice or even gross negligence. Id. Deliberate

17

indifference exists when a prison official “knows of and disregards an excessive risk to inmate

18

health or safety; the official must both be aware of the facts from which the inference could be

19

drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

20

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference exists when a prison

21

official “den[ies], delay[s] or intentionally interfere[s] with medical treatment, or it may be

22

shown by the way in which prison officials provide medical care.” Crowley v. Bannister, 734

23

F.3d 967, 978 (9th Cir. 2013) (internal quotation marks and citation omitted). Critically, “a

24

difference of opinion between a physician and the prisoner—or between medical professionals—

2 of 5

1

concerning what medical care is appropriate does not amount to deliberate indifference.” Snow v.

2

McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.

3

1989), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014).

4

Instead, to establish deliberate indifference in the context of a difference of opinion between a

5

physician and the prisoner or between medical providers, the prisoner “‘must show that the

6

course of treatment the doctors chose was medically unacceptable under the circumstances’ and

7

that the defendants ‘chose this course in conscious disregard of an excessive risk to plaintiff’s

8

health.’” Id. at 988 (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).

9

In other words, where there has been some arguably appropriate treatment, deliberate

10

indifference cannot be established merely by showing disagreement with the physician but only

11

by showing that the defendant chose a course of treatment knowing that it was inappropriate.

12

Put differently, a court cannot substitute its judgment for that of a medical professional, but it can

13

examine a medical professional’s good faith in selecting a course of treatment. Cf. United States

14

v. Seeger, 380 U.S. 163, 185 (1965) (holding that when examining a Free Exercise Clause claim

15

a court cannot challenge the substantive correctness of a plaintiff’s belief but may examine his

16

earnestness in professing it).

17

Defendants have satisfied their initial burden on summary judgment by negating the

18

subjective prong of a deliberate indifference claim in the present context. (See Scott Decl. ¶¶ 7–

19

8, ECF No. 52-16 (attesting that the benign cyst suffered by Plaintiff, like a varicosity, was non-

20

life-threatening, carried no risk of serious harm, did not require surgery, and required only

21

monitoring and pain medication such as ibuprofen)). The Court finds that the evidence adduced

22

by Plaintiff in his opposition to Defendants’ motion for summary judgment does not create a

23

genuine issue of material fact that any Defendant deliberately treated Plaintiff in a manner the

24

Defendant knew or believed to be inappropriate. Defendant Scott responded to Plaintiff’s

3 of 5

1

interrogatories that he prescribed ibuprofen due to Plaintiff’s pain, found no abnormality in his

2

scrotum, and ordered no tests because the condition was common and required no confirmatory

3

tests. (ECF No. 69-1, at 8). He did not feel any referral to a specialist was required. (Id.). He

4

also answered that Plaintiff did not claim he was in constant pain but that it was painful when his

5

scrotum swelled and dropped, and that he believed ibuprofen was adequate for this condition,

6

which he had seen many times in his 34 years of practice. (Id. at 9). His other responses are

7

similar. Nothing indicates that he believed more should have been done but failed to do it.

8

Defendant Poag’s responses also reveal no deliberate indifference but only that he could identify

9

no inadequacies in Plaintiff’s medical care. (See ECF No. 69-1, at 17–20). Defendant

10

Bannister’s responses also reveal no deliberate indifference. (See ECF No. 69-1, at 35–40). He

11

answered that the conditions diagnosed by Drs. Scott and Mar (faulty blood valves and a

12

testicular cyst) were benign conditions. (Id. at 37). For the most part, he had no recollection of

13

Plaintiff’s particular case, noting that the treating physicians would have determined the need for

14

treatment. (Id. at 38–39). Plaintiff adduces no evidence supporting a conclusion that Defendants

15

did not hold these opinions in good faith. The Court therefore grants summary judgment to

16

Defendants Bannister, Poag, and Scott.

17

The Court also respectfully disagrees that Defendants’ arguments concerning the statute

18

of limitations should be stricken from their reply brief because they were not raised in their

19

motion. Even assuming the issue was raised for the first time in the reply brief without having

20

been previously explored such that the Magistrate Judge was correct to treat the argument as

21

having been waived, see Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990), a reply

22

brief is not a “pleading” to which Rule 12(f) applies, see Sidney-Vinstein v. A.H. Robins Co., 697

23

F.2d 880, 885 (9th Cir. 1983), and in any case the argument is not “redundant, immaterial,

24

impertinent, or scandalous,” see Fed. R. Civ. P. 12(f).

4 of 5

1

CONCLUSION

2

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 94) is

3
4

ADOPTED IN PART and REJECTED IN PART.
IT IS FURTHER ORDERED that Defendants’ Motion for Judgment on the Pleadings

5

(ECF No. 28) is DENIED, and Plaintiff’s Motion for Leave to File a Surreply (ECF No. 35) is

6

DENIED as moot.

7
8
9
10
11
12
13
14
15
16
17

IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend (ECF No. 33) is
DENIED, and Plaintiff’s Motion to Amend (ECF No. 86) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Supplement his Opposition (ECF
No. 78) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Strike (ECF Nos. 66, 77) are
DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
52) is GRANTED, and Plaintiff’s Motion for Summary Judgment (ECF No. 72) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Preliminary Injunction (ECF
No. 56) and Plaintiff’s Motion for Sanctions (ECF No. 89) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Produce Docket Sheet (ECF No.

18

71), Motion to Produce Documents (ECF No. 76), and Motion for Leave to File Further

19

Objections to Report and Recommendation (ECF No. 98) are DENIED.

20

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

21

IT IS SO ORDERED.

22

Dated this 5th day of July, 2016.
Dated this 30th day of June, 2016.

23
24

_____________________________________
ROBERT C. JONES
United States District Judge
5 of 5