Reberger v. Koehn et al

Filing 62

ORDER denying ECF Nos. 29 Motion for Summary Judgment, 45 Motion for discovery of Plaintiff's medical records, 47 Motion to Strike Supplement, 50 Motion to Reconsider Review of Medical Records and, 59 Motion to Strike; < B>denying as moot and construed as an opposition to MSJ ECF No. 49 Motion to Dismiss. Court will process IPF application ECF No. 1 in separate order. Signed by Judge Miranda M. Du on 01/23/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 LANCE REBERGER, 8 Case No. 3:15-cv-00551-MMD-VPC Plaintiff, ORDER v. 9 MICHAEL KOEHN et al., 10 Defendants. 11 12 I. DISCUSSION 13 On June 15, 2016, the Court issued a screening order which deferred a decision 14 on Plaintiff’s application to proceed in forma pauperis for ninety (90) days to give the 15 parties an opportunity to settle their dispute. (ECF No. 9 at 6-7.) In an earlier order, the 16 Court acknowledged that Plaintiff had three (3) strikes but found that Plaintiff had alleged 17 to be in imminent danger of serious physical injury in his complaint. (ECF No. 3 at 2.) The 18 Court found imminent danger based on the following allegations: 19 Plaintiff alleges that he has the human immunodeficiency virus (HIV) and that Dr. Koehn and Romeo Aranas are preventing him from taking his HIV medications as prescribed. Plaintiff has two HIV medications (Norvir and Invirase) which must be taken with food every 12 hours. Plaintiff alleges that beginning in September of 2014, the medication has been administered by ESP nurses anywhere from 9½ hours to 16 hours apart. Due to the incorrect timing of his medication, Plaintiff alleges that his T-cell count had dropped 500 “points” in the past year, causing him to be on the verge of developing AIDS and more susceptible to other infections. He also alleges that not taking his medication as prescribed makes it more likely that the medication may become ineffective. 20 21 22 23 24 25 26 27 28 (Id.)1 1The Court found that Plaintiff’s original complaint, filed on November 12, 2015, had stated facts sufficient to allege that he was in imminent danger at the time of filing his complaint. The Court later granted Plaintiff leave to file an amended complaint, filed on April 22, 2016, in which he alleged the same imminent danger facts. (Compare ECF No. 4 with ECF No. 8.) 1 On September 13, 2016, the parties engaged in mediation but did not reach a 2 settlement. (ECF No. 17.) Before the Court issued a decision on the application to 3 proceed in forma pauperis, Defendants challenged the finding that Plaintiff had satisfied 4 the imminent physical danger exception and argued that Plaintiff should be barred from 5 proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(g) based on his three strikes 6 status. (ECF No. 14.) The Court found that Defendants could challenge the Court’s earlier 7 finding that Plaintiff was under imminent danger of serious physical injury and granted 8 Plaintiff an opportunity to respond. (ECF No. 19 at 2.) 9 Before the briefing period ended and before the Court could address Defendants’ 10 first challenge to Plaintiff’s imminent danger status, both Plaintiff and Defendants filed 11 numerous other motions, responses to those motions, and replies to those motions. The 12 following motions are now pending before the Court: Defendants’ motion for summary 13 judgment (ECF No. 29), Plaintiff’s motion for discovery of his medical records (ECF No. 14 45), Defendants’ motion to strike one of Plaintiff’s supplements (ECF No. 47), Plaintiff’s 15 motion to dismiss the motion for summary judgment (ECF No. 49), Plaintiff’s motion for 16 reconsideration to review medical records for discovery (ECF No. 50), and Defendants’ 17 motion to strike one of Plaintiff’s pleadings (ECF No. 59). 18 A. Motion for Summary Judgment2 (ECF No. 29) 1. 19 Legal Standard 20 “The purpose of summary judgment is to avoid unnecessary trials when there is 21 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 22 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 23 pleadings, the discovery and disclosure materials on file, and any affidavits “show that 24 there is no genuine issue as to any material fact and that the moving party is entitled to a 25 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 26 27 28 The Court notes that both Plaintiff and Defendants make several arguments as to why Plaintiff did or did not demonstrate that he was in imminent danger at the time he filed his complaint. The Court will only focus on the arguments that address the reasons why the Court found that Plaintiff had demonstrated imminent danger at the time he filed his complaint. 2 2 1 is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder 2 could find for the nonmoving party and a dispute is “material” if it could affect the outcome 3 of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 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 Serv. Co., 391 U.S. 253, 9 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 10 draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement 11 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 of 13 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 14 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 15 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 16 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 17 produce specific evidence, through affidavits or admissible discovery material, to show 18 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 19 and “must do more than simply show that there is some metaphysical doubt as to the 20 material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting 21 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 22 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 23 Anderson, 477 U.S. at 252. 24 2. Analysis 25 In the motion for summary judgment, Defendants argue that nothing in the full 26 prescribing information for both Invirase and ritonavir, brand name Norvir, states that the 27 drugs must be taken every twelve (12) hours. (ECF No. 29 at 8-9.) Defendants argue that 28 the Invirase literature states that Invirase should be administrated with ritonavir twice daily 3 1 within two (2) hours after a full meal. (Id. at 8.) Defendants state that the ritonavir literature 2 also states that the drug must be administered twice daily with meals. (Id. at 9.) 3 Defendants attach the full prescribing information for each drug as exhibits. (ECF No. 29- 4 4, 29-5.) 5 In the Invirase prescribing literature, the drug manufacturer states the following: 6 “The standard recommended dose of INVIRASE is 1000-mg twice daily . . . in combination 7 with ritonavir 100-mg twice daily . . . Ritonavir should be taken at the same time as 8 INVIRASE. INVIRASE and ritonavir should be taken within 2 hours after a meal.” (ECF 9 No. 29-4 at 4-5.) The Invirase literature provides the following dosing instructions: 10 16 Advise patients that INVIRASE must be used in combination with ritonavir, which significantly inhibits saquinavir’s metabolism to provide increased plasma saquinavir levels. Advise patients that INVIRASE administered with ritonavir should be taken within 2 hours after a full meal . . . When INVIRASE is taken without food, concentrations of saquinavir in the blood are substantially reduced and may result in no antiviral activity. Advise patients of the importance of taking their medication every day, as prescribed, to achieve maximum benefit. Patients should not alter the dose or discontinue therapy without consulting their physician. If a dose is missed, patients should take the next dose as soon as possible. However, the patient should not double the next one. 17 (Id. at 30-31.) The Norvir prescribing literature states that the “recommended dosage of 18 ritonavir is 600 mg twice daily by mouth to be taken with meals.” (ECF No. 29-5 at 5.) 11 12 13 14 15 19 Instead of filing an opposition to the motion for summary judgment, Plaintiff filed a 20 motion to dismiss motion for summary judgment. (ECF No. 49.) The Court interprets the 21 motion to dismiss as an opposition to Plaintiff’s motion for summary judgment. In the 22 opposition, Plaintiff states that his version of the facts are true. (ECF No. 49 at 1.) Plaintiff 23 also argues that his medical history is in error and argues that he should be able to keep 24 prescription medicine on his person. (Id. at 2-3.) Plaintiff argues that he must consume 25 all of his HIV medications every twelve (12) hours with food with no exceptions per the 26 drug manufacturer’s instructions. (Id. at 3.) Plaintiff reiterates that prison officials 27 administer his medication from 9 ½ to 16 hours apart. (Id.) 28 /// 4 1 In support of his arguments, Plaintiff attaches a letter addressed to him from 2 AbbVie, the drug manufacturer of Norvir, which specifically addressed the “definition of 3 twice-daily dosing.” (ECF No. 49 at 31.) The letter is from Cheryl Hanson, Pharm D 4 Manager of AbbVie Inc.’s Global Medical Information. (Id. at 31-32.) In the letter, Hanson 5 provides a definition of twice-daily dosing for Norvir which states that “twice-daily 6 administration refers to administration of the medication every 12 hours.” (Id. at 33.) 7 In response, Defendants filed an opposition to Plaintiff’s motion to dismiss motion 8 for summary judgment. (ECF No. 53.) However, instead of responding to Plaintiff’s 9 substantive arguments and construing the motion to dismiss as an opposition to the 10 motion for summary judgment, Defendants construe the motion to dismiss as a motion to 11 strike and argue that the Court should deny the motion to strike. (Id. at 3-4.) 12 The Court denies Defendants’ motion for summary judgment. Plaintiff has provided 13 evidence that the drug manufacturer intended for Plaintiff to receive his HIV medication 14 every twelve (12) hours. Defendants have not provided any evidence to contradict the 15 every twelve (12) hour directive. Viewing the evidence that Plaintiff offered and drawing 16 all inferences in the light most favorable to Plaintiff as the nonmoving party, Plaintiff has 17 sufficiently satisfied the imminent physical danger showing for three strikes purposes. 18 Accordingly, the Court will grant Plaintiff’s application to proceed in forma pauperis and 19 this case will proceed on the normal litigation track. The Court notes that this order only 20 addresses whether Plaintiff has made a sufficient showing to proceed in forma pauperis 21 based on the imminent physical danger exception to 28 U.S.C. § 1915(g). This order does 22 not express any opinions on the merits of Plaintiff’s claims. 23 B. Miscellaneous Motions 24 In light of the Court’s denial of the motion for summary judgment, the Court denies 25 the motion for discovery of medical records (ECF No. 45), the motion to strike supplement 26 (ECF No. 47), the motion to reconsider review of medical records (ECF No. 50), and the 27 motion to strike (ECF No. 59). 28 /// 5 1 2 3 4 5 II. CONCLUSION For the foregoing reasons, it is ordered that the motion for summary judgment (ECF No. 29) is denied. It is further ordered that the motion for discovery of Plaintiff’s medical records (ECF No. 45) is denied. 6 It is further ordered that the motion to strike supplement (ECF No. 47) is denied. 7 It is further ordered that the motion to dismiss (ECF No. 49) is denied as moot and 8 9 10 construed as an opposition to the motion for summary judgment. It is further ordered that the motion to reconsider review of medical records (ECF No. 50) is denied. 11 It is further ordered that the motion to strike (ECF No. 59) is denied. 12 The Court will process the application to proceed in forma pauperis (ECF No. 1) in 13 a separate order. 14 DATED THIS 23rd day of January 2017. 15 16 17 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 6

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