Leonard v. Baker et al

Filing 119

ORDER REGARDING REPORT ANDRECOMMENDATION - The Report and Recommendation (ECF No. 89 ) is accepted and adopted in full. Defendants' Motion for Summary Judgment (ECF No. 53 ) is granted. Defendants' motions to strike (ECF Nos. 97 , [98 ], 111 ) are granted. Plaintiff's reply brief (ECF No. 95 ) and filings relating to new evidence (ECF Nos. 91 , 94 , 107 ) will be stricken. The following motions filed by Plaintiff are denied: second motion for appointment of counsel (ECF No. 88 ); second motion for reconsideration (ECF No. 93 ), motion for continuance (ECF No. 99 ), and motions for leave to file new evidence (ECF Nos. 103 , 114 ). The Clerk shall enter judgment and close this case. Signed by Judge Miranda M. Du on 8/17/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 WILLIAM LEONARD, Plaintiff, 8 9 Case No. 3:15-cv-00275-MMD-VPC v. RENEE BAKER, et. al., 10 ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE Defendants. 11 12 I. SUMMARY 13 Before the Court is the Report and Recommendation of United States Magistrate 14 Judge Valerie P. Cooke (ECF No. 89) (“R&R” or “Recommendation”) relating to 15 Defendants’ Motion for Summary Judgment (“Defendants’ Motion”) (ECF Nos. 53, 54). 16 Plaintiff filed his objection (ECF No. 90) to which Defendants responded (ECF No. 92). 17 Plaintiff then filed his reply without seeking leave of court (ECF No. 95). LR IB 3-2(a) 18 provides that a reply in response to an objection to the Magistrate Judge’s report and 19 recommendation may be filed only with leave of the court. Plaintiff did not seek leave to 20 file a reply and given the extensive briefings relating to Defendants’ Motion, the Court 21 finds that Plaintiff’s reply is unwarranted and will grant Defendants’ motion to strike 22 Plaintiff’s reply (ECF No. 98). Because the Court did not grant Plaintiff leave to submit 23 purported new evidence in opposition to Defendants’ Motion, the Court grants 24 Defendant’s motions to strike Plaintiff’s purported new evidence submission and notice 25 of new evidence (ECF Nos. 91, 94, 107). (ECF Nos. 97, 111.) 26 Plaintiff filed several motions that are related to the Court’s resolution of the R&R: 27 second motion for appointment of counsel (ECF No. 88); second motion for 28 reconsideration (ECF No. 93), motion for continuance (ECF No. 99), and motions for 1 leave to file new evidence (ECF Nos. 103, 114). The Court will address these motions 2 first. 3 II. BACKGROUND 4 Plaintiff William Leonard is an inmate in the custody of the Nevada Department of 5 Corrections (“NDOC”) and currently housed at Ely State Prison (“ESP”). On May 31, 6 2016, this Court issued a screening order on Plaintiff’s first amended complaint (“FAC”) 7 and permitted Counts I, II and IV to proceed. (ECF No. 13 at 10-11; see ECF No. 11.) 8 The Court dismissed Counts III and V without prejudice. (ECF No. 13 at 10.) The Court 9 also dismissed Defendants Baker, Cox, Aranas, Koehn, Jones, Drain, Smith, Fletcher 10 and Byrne without prejudice. (Id. at 11.) The Court subsequently granted Plaintiff’s 11 motion for leave to file his second amended complaint (“SAC”), which is nearly identical 12 to the FAC, and permitted the same three counts to proceed. (ECF No. 48.) Plaintiff then 13 filed a 96-page motion for reconsideration of this Court’s May 2016 screening order. 14 (ECF No. 50.) The Court denied his motion, finding that “Plaintiff has not provided the 15 Court with any newly discovered evidence that would change the outcome of the 16 screening order.” (ECF No. 81 at 2.) 17 Plaintiff’s claims arise from two separate incidents. The first two counts are based 18 on Plaintiff’s allegations that he had been suffering from a sore and bleeding penis and 19 that he was not offered a “dry cell” in which to provide his urine sample, but was instead 20 catheterized when he was unable to provide a urine sample. (ECF No. 49 at 7-9.) The 21 third count is based on Defendants Dr. Shaw and Seena’s alleged deliberate 22 indifference to Plaintiff’s broken denture and his need for “soft diet” as a result. (Id. at 12- 23 13, 21.) The relevant background facts are set forth in detailed in the R&R, which this 24 Court adopts. (ECF No 89 at 4-5, 9.) 25 III. PLAINTIFF’S MOTIONS 26 Plaintiff’s pending motions are essentially motions for reconsideration since the 27 Court has addressed the issues raised in these motions. A motion to reconsider must set 28 forth “some valid reason why the court should reconsider its prior decision” and set “forth 2 1 facts or law of a strongly convincing nature to persuade the court to reverse its prior 2 decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Mere 3 disagreement with an order is an insufficient basis for reconsideration. The Court finds 4 Plaintiff has not presented a valid reason for the Court to reconsider. 5 The Court denied Plaintiff’s motion for appointment of counsel, finding that this 6 case does not meet the exceptional circumstances requirement for the Court to seek 7 volunteer counsel to represent Plaintiff. (ECF No. 35.) Plaintiff’s second motion for 8 appointment of counsel (ECF No. 88) is therefore denied. The Court previously denied 9 Plaintiff’s motion for reconsideration (ECF No. 81) and will not reconsider its earlier 10 ruling. Plaintiff’s second motion for reconsideration (ECF No. 93) is therefore denied. 11 The Court previously denied Plaintiff’s motion for continuance of the summary judgment 12 proceedings to permit him to conduct discovery. (ECF No. 97 at 2.) Plaintiff offers no 13 valid reason for the Court to reconsider and therefore his second motion for continuance 14 (ECF No. 99) is denied. 15 Plaintiff filed two motions for leave to file new evidence and arguments in support 16 of his opposition to Defendants’ Motion. (ECF No. 103, 114.) In the first motion, he 17 essentially offers evidence presented through his expert witnesses’ declarations that 18 catheterization was not medically necessary. He also reargues his objection that “there 19 was no medical order to catheterize Plaintiff because he had a problem with his bladder 20 and was unable to urinate.”1 (ECF No. 103 at 10.) In the second motion, Plaintiff 21 challenges the order for him to be catheterized and appears to ask for leave to amend to 22 sue the doctor who issued the order. (ECF No. 114 at 4.) The Court finds that Plaintiff 23 has had ample opportunity to present evidence in opposition to Defendants’ Motion and 24 in support of his objection. Moreover, Plaintiff’s two motions repeat arguments presented 25 in his opposition to Defendants’ Motion and his objection. Accordingly, the Court denies 26 Plaintiff’s two motions for leave to file new evidence and arguments. Plaintiff cannot 27 28 1This is the main argument Plaintiff raised in his objection to the Magistrate Judge’s recommendation to grant summary judgment on Counts I and II. (ECF No. 90 at 2-5.) 3 1 continue to repeated motions offering essentially the same arguments because he 2 disagrees with the Court’s rulings. 3 IV. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 A. Legal Standards 5 This Court “may accept, reject, or modify, in whole or in part, the findings or 6 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 7 timely objects to a magistrate judge’s report and recommendation, then the court is 8 required to “make a de novo determination of those portions of the [report and 9 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 10 to object, however, the court is not required to conduct “any review at all . . . of any issue 11 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 12 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 13 magistrate judge’s report and recommendation where no objections have been filed. See 14 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 15 of review employed by the district court when reviewing a report and recommendation to 16 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 17 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 18 view that district courts are not required to review “any issue that is not the subject of an 19 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 20 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 21 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 22 which no objection was filed). 23 “The purpose of summary judgment is to avoid unnecessary trials when there is 24 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 25 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 26 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 27 is no genuine issue as to any material fact and that the movant is entitled to judgment as 28 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is 4 1 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 2 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 3 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 4 (1986). Where reasonable minds could differ on the material facts at issue, however, 5 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 6 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 7 resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 8 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 9 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts 10 and draws all inferences in the light most favorable to the nonmoving party. Kaiser 11 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 12 The moving party bears the burden of showing that there are no genuine issues 13 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 14 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 15 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 16 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the 17 pleadings but must produce specific evidence, through affidavits or admissible discovery 18 material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 19 1409 (9th Cir. 1991), and “must do more than simply show that there is some 20 metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th 21 Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 22 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position 23 will be insufficient.” Anderson, 477 U.S. at 252. 24 B. Discussion 25 The Magistrate Judge recommends granting summary judgment on all three 26 counts that survived screening. The Court will address each count below. 27 /// 28 /// 5 1 2 1. Count I: Unreasonable Search in Violation of the Fourth Amendment 3 In Skinner v. Ry. Labor Exec. Ass’n, 489 U.S. 602 (1989), the Supreme Court 4 held that the collection and testing of urine is a search and seizure within the meaning of 5 the Fourth Amendment. Id. at 617. “[T]o avoid the proscription of the Fourth Amendment, 6 urinalyses must be conducted in a reasonable manner.” Thompson v. Souza, 111 F.3d 7 694, 701 (9th Cir. 1997). To determine reasonableness, the Supreme Court has held 8 that each case “requires a balancing of the need for the particular search against the 9 invasion of personal rights that the search entails” and that “[c]ourts must consider the 10 scope of the particular intrusion, the manner in which it is conducted, the justification for 11 initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 12 (1979); see also Souza, 111 F.3d at 702 (applying the Bell balancing factors in light of 13 the test articulated in Turner v. Safley, 482 U.S. 78 (1987)). However, prison officials are 14 “accorded wide-ranging deference in the adoption and execution of policies and 15 practices that in their judgment are needed to preserve internal order and discipline and 16 to maintain institutional security.” Id. at 547. 17 The Magistrate Judge recommends granting summary judgment on Count I, 18 finding that the collection of urine under the circumstances of this case to be reasonable 19 after examining the above referenced factors. In particular, the Magistrate Judge found 20 that the parties do not dispute that (1) the scope of the search was reasonable because 21 Plaintiff was randomly selected for urinalysis, (2) random urinalysis was justified and (3) 22 the place of the urinalysis was reasonable because it occurred in an ESP medical 23 examination room. (ECF No. 89 at 6.) The Magistrate Judge found that Plaintiff’s 24 urinalysis was reasonably related to legitimate penological interests. (Id.) Plaintiff does 25 not object to these findings. The Court thus adopts the Magistrate Judge’s findings on 26 these issues. Thomas, 474 U.S. at 149. 27 Plaintiff’s main objection with respect to Count I is the Magistrate Judge’s finding 28 that the manner in which the urinalysis was conducted was reasonable the 6 1 catheterization was not done for the purpose of collection. In particular, the medical 2 records show that “the catheterization was performed because of Plaintiff’s complaints 3 about pain and blood in his urine” and the urinalysis was collected after the 4 catheterization. (ECF No. 89 at 6.) The Magistrate Judge cites to the following evidence 5 in the records as support for her finding: An examination of plaintiff’s medical records indicates that the catheterization was done for this purpose. (See ECF Nos. 54-1, 54-2 at 2.) A “medical report of incident, injury or unusual occurrence” was filled out on July 9, 2014 stating that “inmate reported urine [with] blood in it.” (ECF No. 54-1.) The medical report further states that a “straight cath” and “urine dip” were performed and that the specimen was sent to CERT, presumably for the urinalysis. (Id.) Plaintiff’s progress notes further indicate that the catheterization was done because of plaintiff’s complaints of “pain in urethra and bladder area” and plaintiff stated he felt more “relieved” after the catheterization. (ECF No. 54-2 at 2.) 6 7 8 9 10 11 12 (Id.) 13 Plaintiff challenges this finding in his objection, contending that “the medical 14 records do not show the catheterization was done to obtain a urine specimen regarding 15 blood in Plaintiff’s urine.” (ECF No. 90 at 2.) Plaintiff’s contention is not supported by the 16 records. Defendants submitted a document entitled “Medical Report of Incident, Injury or 17 Unusual Occurrence” for Plaintiff dated July 9, 2014, which states: “inmate reported 18 ‘urine blood in it’ – MD ordered straight cath + urine dip done.” (ECF No. 54-1 at 2.) The 19 “Progress Notes” for Plaintiff contain a notation for July 9, 2014, stating essentially that 20 Plaintiff was “catherized” and that he had “c/o pain in urethra + bladder area – stable he 21 now feels more ‘relieved.’” (ECF No. 54-2 at 2.) The Court thus agrees with the 22 Magistrate Judge’s finding that the manner of the collection of Plaintiff’s urine sample 23 after he was catheterized was not unreasonable. 24 25 2. Count II: Deliberate Indifference to Serious Medical Need Re Treatment for Pain and Blood in Urine 26 Deliberate indifference to a prisoner’s serious medical needs violates the Eighth 27 Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “To establish an Eighth 28 Amendment violation, a plaintiff must satisfy both an objective standard — that the 7 1 deprivation was serious enough to constitute cruel and unusual punishment — and a 2 subjective standard — deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 3 (9th Cir. 2012). The first prong requires plaintiff to “a serious medical need by 4 demonstrating that failure to treat a prisoner’s condition could result in further significant 5 injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 6 1096 (9th Cir. 2006) (internal quotations omitted). The second prong requires plaintiff to 7 show “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical 8 need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison 9 officials deny, delay or intentionally interfere with medical treatment, or it may be shown 10 by the way in which prison physicians provide medical care.” Id. (internal quotations 11 omitted). Mere negligence does not rise to an Eighth Amendment violation. Hutchinson 12 v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 13 Moreover, prison officials are not deliberately indifferent simply because they 14 selected or prescribed a course of treatment different than the one the inmate requests 15 or prefers. Toguchi v. Chung, 391 F.3d 1050, 1058 (9th Cir. 2004). Only where the 16 prison official’s “‘chosen course of treatment was medically unacceptable under the 17 circumstances,’ and was chosen ‘in conscious disregard of an excessive risk to the 18 prisoner’s health,’” will the treatment decision be found constitutionally infirm. Id. (quoting 19 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)). In addition, it is only where those 20 infirm treatment decisions result in harm to the plaintiff—though the harm need not be 21 substantial—that Eighth Amendment liability arises. Jett, 439 F.3d at 1096. 22 The Magistrate Judge found that Plaintiff can satisfy the first prong—that his 23 reports of blood in his urine and an inability to produce urine shows a serious medical 24 need. (ECF No. 89 at 8.) However, the Magistrate Judge found that the second prong is 25 not satisfied because the medical records show that “the purpose of the catheterization 26 was to address plaintiff’s complaints of pain and blood in his urine, and inability to 27 produce urine.” (Id.) It is this finding that Plaintiff disputes. He argues that given his 28 report of pain and soreness, “having a catheter shoved into [his] sore penis amounts to 8 1 deliberate indifference.” (ECF No. 90 at 4.) He insists that “catheterization is not how to 2 determine blood in urine” or “how you treat someone who complained of penis pain and 3 blood in urine.”2 (Id. at 4-5.) Plaintiff contends that Defendants’ use of the catheter under 4 the circumstances here was done in conscious disregard of excessive risk to his health. 5 The Court agrees with the Magistrate Judge’s finding that the medical records 6 undisputedly show that the catheterization was ordered to address Plaintiff’s complaint of 7 pain and blood in his urine. (See discussion supra at Sect. III(B)(2).) Plaintiff’s contention 8 that catheterization was not medically necessary because he had complained of pain 9 and catheterizing only enhanced his pain, not resolved it, is not supported by the 10 undisputed medical records. Moreover, even accepting Plaintiff’s contention as true, he 11 has at best only shown that he was not provided adequate care and that the 12 catheterization may be medically unacceptable. However, neither showing is sufficient to 13 satisfy the second prong. See Farmer v. 511 U.S. at, 835; Toguchi, 391 F.3d at 1058. 14 Plaintiff has not offered any evidence to show that the decision to order catheterization 15 was done in “conscious disregard of an excessive risk of” Plaintiff’s health. Toguchi, 391 16 F.3d at 1058. The Court therefore adopts the Magistrate Judge’s recommendation to 17 grant summary judgment as to Count II. 18 19 Count IV: Deliberate Indifference to Serious Medical Need Re Delay in Dental Care 20 Where, as here, a prisoner alleges that delay of medical treatment evinces 21 deliberate indifference, the prisoner must show that the delay led to further injury. See 22 Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) 23 (holding that “mere delay of surgery, without more, is insufficient to state a claim of 24 deliberate medical indifference”). The Magistrate Judge found that the medical records 25 undisputedly show that “Plaintiff was seen by a dentist on a number of occasions, was 26 27 28 3. 2Plaintiff cites to a declaration from his aunt, Janet E. Leonard, who “was an LPN nurse for 43 years,” as support for his argument that catheterization was not medically necessary. (ECF No. 90 at 2.) He references other declarations from expert witnesses which support the same opinion in his subsequent motion to submit new evidence. (ECF No. 103.) 9 1 provided Fixodent, was prescribed a soft food diet, and eventually received new 2 dentures.” (ECF No. 89 at 11.) The Magistrate Judge further found that, while there may 3 have been some delay in Plaintiff obtain new dentures, Plaintiff cannot show “further 4 injury.” (ECF No 89 at 11.) Having reviewed the records in this case, the Court agrees. 5 In his objection, Plaintiff argues that he should be given the opportunity to conduct 6 discovery to obtain evidence of “further injury.” (ECF No. 90 at 5-6.) However, such 7 evidence should be in Plaintiff’s possession; evidence of “further injury” to Plaintiff would 8 not be coming from Defendants. Plaintiff thus cannot show he cannot obtain facts 9 needed to justify his opposition to Defendants’ Motion as required under Fed. R. Civ. P. 10 56(d). 11 V. 12 CONCLUSION It is therefore ordered, adjudged and decreed that the Report and 13 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 89) is accepted and 14 adopted in full. 15 16 It is further ordered that Defendants’ Motion for Summary Judgment (ECF No. 53) is granted. 17 It is further ordered that Defendant’s motions to strike (ECF Nos. 97, 98, 111) are 18 granted. Plaintiff’s reply brief (ECF No. 95) and filings relating to new evidence (ECF 19 Nos. 91, 94, 107) will be stricken. 20 It is further ordered the following motions filed by Plaintiff are denied: second 21 motion for appointment of counsel (ECF No. 88); second motion for reconsideration 22 (ECF No. 93), motion for continuance (ECF No. 99), and motions for leave to file new 23 evidence (ECF Nos. 103, 114). 24 It is further ordered that the Clerk enter judgment and close this case. 25 DATED THIS 17th day of August 2017. 26 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 10

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