Hendrix v. State of Nevada et al

Filing 131

ORDER that the Magistrate Judge's Report and Recommendations ECF No. 118 is accepted and adopted in full; ECF No. 84 Motion for Summary Judgment is granted in part and denied in part; ECF No. 122 Motion to Seal is granted. Signed by Judge Miranda M. Du on 3/2/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMAL DAMON HENDRIX,

Case No. 3:15-cv-00155-MMD-WGC
Plaintiff,

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ORDER

v.
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STATE OF NEVADA, et al.,
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Defendants.
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I.

SUMMARY

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Before the Court is the Report and Recommendation (“Recommendation” or

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“R&R”) of Judge William G. Cobb, recommending that the Court grant in part and deny in

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part Defendants’ Partial Motion for Summary Judgment (“Motion”) (ECF No. 84). (ECF No.

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118.) Defendants filed an objection (ECF No. 121), as did Plaintiff (ECF No. 125).

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Defendants responded to Plaintiff’s objection. (ECF No. 126.) Defendants also filed a

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Motion for Leave to File Confidential Documents Under Seal in Support of Defendants’

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Objection (“Motion to Seal”). (ECF No. 122.) Plaintiff did not respond to the Motion to Seal.

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For the following reasons, the Court accepts and adopts the R&R in full. The Court

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also grants Defendants’ Motion to Seal.

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II.

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BACKGROUND
The Court adopts the background as set out in the Report and Recommendation.

(ECF No. 118 at 1-4.)

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III.

LEGAL STANDARDS

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A.

Review of Magistrate Judge’s Recommendation

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

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

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timely objects to a magistrate judge’s report and recommendation, then this Court is

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

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recommendation] to which objection is made.” Id. Mindful of the fact that the Supreme

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Court has “instructed the federal courts to liberally construe the ‘inartful pleading’

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of pro se litigants,” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Boag v.

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MacDougall, 454 U.S. 364, 365 (1982) (per curiam)), the Court will view Plaintiff’s

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pleadings with the appropriate degree of leniency.

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B.

Summary Judgment

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“The purpose of summary judgment is to avoid unnecessary trials when there is no

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dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18

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

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the discovery and disclosure materials on file, and any affidavits “show there is no genuine

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issue as to any material fact and that the movant is entitled to judgment as a matter of

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law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is

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a sufficient evidentiary basis on which a reasonable fact-finder could find for the

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nonmoving party, and a dispute is “material” if it could affect the outcome of the suit under

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the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where

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reasonable minds could differ on the material facts at issue, however, summary judgment

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is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a

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genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’

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differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th

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Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In

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evaluating a summary judgment motion, a court views all facts and draws all inferences in

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the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach &

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Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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

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

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

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

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477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must

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produce specific evidence, through affidavits or admissible discovery material, to show

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that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),

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and “must do more than simply show that there is some metaphysical doubt as to the

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material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of

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a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson,

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477 U.S. at 252.

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IV.

MOTION TO SEAL (ECF No. 122)

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Defendants request that certain exhibits be sealed (ECF Nos. 123-1 and 123-2)

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because they include Plaintiff’s confidential medical records and grievance records related

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to his medical conditions. (See ECF No. 122 at 2.) To establish that documents are

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sealable, the moving party “must overcome a strong presumption of access by showing

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that ‘compelling reasons supported by specific factual findings . . . outweigh the general

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history of access and the public policies favoring disclosure.” Pintos v. Pac. Creditors

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Ass’n, 605 F.3d 665, 679 (9th Cir. 2010) (citation omitted). Defendants assert that

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Plaintiff’s medical and grievance records should be filed under seal because Plaintiff has

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not waived the confidentiality of his health information and because Plaintiff’s privacy and

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safety could be at risk if the records relating to his medical condition were in his physical

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possession. (ECF No. 122 at 2-3.) The Court agrees and finds that the exhibits should

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remain under seal as they contain confidential information about Plaintiff, including

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Plaintiff’s medical records and information about his medications. Accordingly, the Court

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will grant Defendants’ Motion to Seal.

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V.

DEFENDANTS’ OBJECTION (ECF No. 121)

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Defendants make a number of objections based on the legal principle that a court

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should not adopt a version of the facts for purposes of ruling on a motion for summary

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judgment if that version of the facts is blatantly contradicted by the record such that no

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reasonable jury could believe it. (ECF No. 121 at 4 (citing Scott v. Harris, 550 U.S. 372,

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380 (2007)).) The Court does not find that the inconsistencies between Plaintiff’s

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allegations (supported by declarations and affidavits) and prison records amount to

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anything less significant than genuine issues of material fact.

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A.

Count VII

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Count VII contains claims for retaliation and deliberate indifference related to

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Plaintiff’s allegation that he was denied pain and anti-seizure medications on June 2, 2014.

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(ECF No. 118 at 3, 25-27.) The Magistrate Judge recommended denying Defendants’

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Motion as to these claims. (Id. at 36.)

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Defendants contend that the Magistrate Judge erred because Plaintiff’s version of

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the facts is blatantly contradicted by the record. (ECF No. 121 at 4.) “When opposing

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parties tell two different stories, one of which is blatantly contradicted by the record, so

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that no reasonable jury could believe it, a court should not adopt that version of the facts

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for purposes of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.

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Defendants argue that Plaintiff’s medication administration record “clearly demonstrates

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that [Plaintiff] received his [anti-seizure medication] on June 2, 2014,” though Defendants

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do not address whether Plaintiff received pain medication. (ECF No. 121 at 4 (citing ECF

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No. 85-4 at 2).) The record consists of a table with rows listing the administration times of

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different medications and columns listing a series of dates. (See ECF No. 85-4 at 2.) The

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cells of the chart contain initials of various officers, apparently indicating that Plaintiff

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received medications on certain dates and at certain times. (See id.) While this record

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suggests that Defendants gave Plaintiff his medication on June 2, 2014, it is not beyond
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dispute. Plaintiff’s version of the facts, described in his declaration, remains believable:

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“Plaintiff claims that he called Cox in the control station and asked him to intervene, but

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Cox said: ‘You would have received your medication, but you wrote a grievance on my

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officers, now deal with it.’” (ECF No. 118 at 26 (citing ECF No. 94-1 at 102).) A reasonable

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juror could assign more weight to Plaintiff’s allegations than to the medical record.

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Accordingly, the Court finds that the Magistrate Judge did not err in concluding that a

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genuine issue of material fact precludes summary judgment on these claims.

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B.

Count IX

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Count IX contains a conditions of confinement claim based on Plaintiff’s allegations

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that he was deprived of socks and underwear, placed in a high bed without guardrails

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even though Defendants knew Plaintiff had a seizure disorder, denied out-of-cell exercise,

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and forced to reside in a cell covered in feces and urine. (ECF No. 118 at 4.) The

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Magistrate Judge recommended denying Defendants’ Motion as to Defendants Koehn,

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Lyons, Aranas, Baker, Fletcher, and Byrne and granting the Motion as to Defendant Jones.

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(Id. at 33.)

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Defendants first contend that the Magistrate Judge erred in denying summary

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judgment as to Plaintiff’s conditions of confinement claim because the record

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demonstrates that Plaintiff “was admitted to the infirmary for non-compliance with his

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seizure medication.” (ECF No. 121 at 5.) However, the reason for Plaintiff’s placement in

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the infirmary does not appear to be at issue with respect to this claim.

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Defendants further argue that a response to Plaintiff’s first-level grievance

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demonstrates that Plaintiff was provided his legal property and clean clothes. (Id. (citing

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ECF No. 84-14 at 15).) The grievance response states: “You received your legal property

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soon after your admission and you also received clean clothing.” (ECF No. 84-14 at 15.)

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Plaintiff disputes this assertion and provides an affidavit in support of his allegations. (See

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ECF No. 118 at 28; ECF No. 94-2 at 123.) The grievance response is not beyond dispute—

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a reasonable juror could find Plaintiff’s allegations to be more probative than the grievance

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response on the issue of whether Plaintiff received his legal property and clean clothes.
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Defendants further argue that Plaintiff was denied out-of-cell exercise only when

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he was not compliant with his seizure medication. (ECF No. 121 at 5.) Defendants cite to

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a medical record purportedly demonstrating that Plaintiff did not take his seizure

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medication on forty different days during his seventy-eight-day stay in the infirmary. (Id.

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(citing ECF No. 123-2).) However, Plaintiff alleges that he was denied out-of-cell exercise

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even on days when he took his medication. (ECF No. 94-2 at 181.) The medical records

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Defendants cite demonstrate that Plaintiff refused medication, not that he was permitted

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out-of-cell exercise when he took medication.
Accordingly, the Magistrate Judge did not err in concluding that genuine issues of

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material fact preclude summary judgment on these claims.

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C.

Count X

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Count X contains an Eighth Amendment deliberate indifference claim against

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Defendant Gregersen based on Plaintiff’s allegations that Defendant Gregersen denied

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Plaintiff pain medication on July 22, 2014. (ECF No. 118 at 4.) The Magistrate Judge

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recommended denying summary judgment on this claim. (Id. at 34.)

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Defendants contend that the Magistrate Judge erred because a document in the

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record demonstrates that Plaintiff actually received his pain medication on July 22, 2014.

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(ECF No. 121 at 6.) The document Defendants cite indicates that Plaintiff refused two

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medications and “only wanted [pain medication].” (ECF No. 85-5 at 3.) This does not

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conclusively establish that Plaintiff received pain medication, and Plaintiff contends in his

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affidavit that he did not. (ECF No. 94-2 at 112.)
Accordingly, the Court finds that the Magistrate Judge did not err in denying

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summary judgment on this claim.

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D.

Count XI

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Count XI is an Eighth Amendment deliberate indifference claim against Defendant

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Gregersen based on Plaintiff’s allegation that Defendant Gregersen denied Plaintiff

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seizure medication on August 6, 2014, resulting in Plaintiff’s seizure and accompanying

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injuries. (ECF No. 118 at 4.) The Magistrate Judge recommended denying summary

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judgment on this claim. (Id. at 35.)

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Defendants contend that the administrative medical record shows that Plaintiff

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received his seizure medication the night of August 6, 2014. (ECF No. 121 at 6 (citing ECF

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No. 85-4 at 3).) However, this does not establish beyond dispute that Plaintiff received his

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seizure medication. “Plaintiff states that on August 6, 2014, Gregersen denied him his

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prescribed anti-seizure medication (Dilantin) because he had filed a grievance against her

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regarding the denial of pain medication on July 22, 2014.” (ECF No. 118 at 35 (citing ECF

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No. 94-2 at 115-16).) A reasonable juror could find Plaintiff’s allegations more probative

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than the medical record on the issue of whether Plaintiff received his anti-seizure

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medication.
Accordingly, the Court finds that the Magistrate Judge did not err in denying

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summary judgment on this claim.

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VI.

PLAINTIFF’S OBJECTION (ECF No. 125)

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A.

Request for Judicial Notice

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Plaintiff requested that the Court take judicial notice of another of his cases, 2:15-

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cv-00560-MMD-NJK, which includes allegations of excessive force. (ECF No. 118 at 36.)

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The Magistrate Judge denied the request because Plaintiff did not identify specific

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documents of which the Court should take judicial notice or how such documents would

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be relevant to this case. (Id.)

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Plaintiff argues in his objection that the Court should take judicial notice of the prior

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case because it shows that Defendants were aware of the pain he experienced as a result

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of the use of excessive force complained of in that case. (ECF No. 125 at 3.) However,

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Plaintiff again fails to identify specific documents. (See id.)
Accordingly, the Magistrate Judge did not err in rejecting Plaintiff’s request for

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judicial notice.

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B.

Motion to Stay

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Plaintiff moved to stay the action for the purpose of completing additional discovery.

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(ECF No. 118 at 7 (citing ECF No. 94-2 at 163-66).) The Magistrate Judge denied the

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request because Plaintiff did not identify specific facts he hoped to elicit from additional

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discovery. (Id. at 8 (citing FRCP 56(d) and Family Home and Finance Ctr., Inc. v. Fed.

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Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008)).) Plaintiff still has not

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described the specific facts he hopes to elicit through additional discovery. (See ECF No.

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125 at 3.) Accordingly, the Magistrate Judge did not err in denying Plaintiff’s motion to

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stay.

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C.

Count I

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Count I contains a supervisory liability claim against Defendants Jones and Aranas

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based on allegations that they rejected Plaintiff’s requests for pain medication after other

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prison staff denied Plaintiff the medication. (ECF No. 118 at 2.) The Magistrate Judge

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recommended granting summary judgment in favor of Defendants Jones and Aranas on

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this claim. (Id. at 14, 16.)

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Plaintiff argues in his objection that Defendant Jones was deliberately indifferent to

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Plaintiff’s serious medical needs by denying Plaintiff’s request to receive pain medication.

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(ECF No. 125 at 5.) However, the record indicates that Jones responded to Plaintiff with

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instructions for how to receive pain medication, and Plaintiff chose not to follow those

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instructions. (ECF No. 118 at 14-15 (citing ECF No. 85-8 at 4).) Accordingly, the Court

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finds that the Magistrate Judge did not err in granting summary judgment in favor of Jones

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on this claim.

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Plaintiff further argues that Defendant Aranas was deliberately indifferent to

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Plaintiff’s serious medical needs by denying a second level grievance Plaintiff filed

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regarding this incident. (ECF No. 125 at 5.) However, Aranas “simply reiterated the advice

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given at the prior grievance levels that Plaintiff should get another appointment if he was

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still having issues with pain, and refrain from arguing with the medical provider.” (ECF No.

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118 at 15-16 (citing ECF No. 84-16 at 3, 7).) Accordingly, the Magistrate Judge did not err

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in granting summary judgment in favor of Aranas on this claim.

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D.

Count III

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Count III contains a conditions of confinement claim against Defendant Winsor

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based on allegations Plaintiff was denied adequate clothing and a towel for several

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months, including winter months, which impacted his health and ability to exercise

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outdoors. (ECF No. 118 at 3.) Count III also contains supervisory liability claims against

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Defendants Baker and Williams because they allegedly denied Plaintiff’s requests and

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grievances regarding the lack of clothing. (Id.) The Magistrate Judge granted summary

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judgment in favor of Defendants Winsor, Baker, and Williams because there was no

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evidence in the record that Plaintiff put these defendants on notice of his lack of clothing.

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(Id. at 24.)

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Plaintiff argues in his objection that the Magistrate Judge erred because these

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defendants were in fact aware of these conditions. (ECF No. 125 at 6.) However, the

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grievance forms do not indicate that Plaintiff was “cold in his cell, was suffering from a

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cold, or did not have adequate clothing to go to the recreation yard.” (ECF No. 118 at 24

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(citing ECF No. 94-1 at 62-76).) Plaintiff’s bald assertion that Defendants were aware of

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these issues is insufficient to create a genuine issue of material fact to preclude summary

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judgment. (See ECF No. 125 at 6.)
Accordingly, the Court finds that the Magistrate Judge did not err in granting

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summary judgment in favor of Defendants Winsor, Baker, and Williams on this claim.

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E.

Count IX

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Count IX contains a conditions of confinement claim against Defendant Jones

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based on Plaintiff’s allegation that Defendant Jones was aware that that Plaintiff’s cell was

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covered in feces and urine, that Plaintiff’s bed was high and lacked guard rails, and that

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Plaintiff had not received socks and underwear. (ECF No. 118 at 4.) The Magistrate Judge

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recommended granting Defendants’ motion in favor of Defendant Jones. (Id.)

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Plaintiff argues in his objection that the Magistrate Judge erred in granting

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Defendants’ motion in favor of Jones because Jones “had direct knowledge of [P]laintiff’s

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condition of inhumane treatment while in the prison infirmary because she was the on call

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nurse during all medication pass out and [P]laintiff made here aware of such conditions by

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way of prison grievances and personal knowledge as he did his part to make her aware.”

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(ECF No. 125 at 5.) The Magistrate Judge considered Plaintiff’s argument that Defendant

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Jones was aware of Plaintiff’s complaints and concluded that Plaintiff did not introduce

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evidence that he informed Defendant Jones that his cell was covered in feces and urine,

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that his bed was high and lacked guard rails, or that he attempted to correct Defendant

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Jones after she asserted that he had received his legal property and clean clothing. (ECF

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No. 118 at 30.) The Court agrees with the Magistrate Judge’s determination and notes

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that Plaintiff has not adduced any such evidence in his objection. (See ECF No. 125 at 5,

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7.) Accordingly, the Court finds that the Magistrate Judge did not err in granting summary

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judgment as to Jones.

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VII.

It is therefore ordered that the Magistrate Judge’s R&R is accepted and adopted in

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CONCLUSION

full.

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It is further ordered that Defendants’ Partial Motion for Summary Judgment (ECF

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No. 84) is granted in part and denied in part consistent with the Magistrate Judge’s

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recommendations.

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It is further ordered that Defendants’ Motion to Seal (ECF No. 122) is granted.

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DATED THIS 2nd day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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