King v. Cox et al

Filing 65

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 60 is adopted and accepted in full; ECF Nos. 21 and 46 Motions for Summary Judgment are denied. Signed by Judge Miranda M. Du on 8/20/2018. (Copies have been distributed pursuant to the NEF - KW)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 RASHON KING, Case No. 3:16-cv-00177-MMD-WGC Plaintiff, 10 v. 11 JAMES G. COX, et al., ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB 12 Defendant. 13 14 I. SUMMARY 15 Before the Court is a Report and Recommendation of United States Magistrate 16 Judge William G. Cobb (“R&R”). (ECF No. 60.) In the R&R, Judge Cobb addresses two 17 pending motions for summary judgment—one by Defendants generally (ECF No. 21) 1 and 18 the other by Defendant Jones (ECF No. 46). Plaintiff responded to each motion (ECF 19 Nos. 27, 34 (supplement) 2, 49) and Defendants replied (ECF Nos. 29, 45, 52). Judge Cobb 20 recommends granting summary judgment in favor of Defendant Luce, but denying 21 summary judgment as to the remaining four defendants. 3 (ECF No. 60 at 10–14.) The 22 Court has reviewed Defendants’ objection (ECF No. 61) and Plaintiff’s response (ECF No. 23 /// 24 25 26 27 28 1This motion is purported as having been filed by Defendants Romeo Aranas, Paul Bitar, Gloria Carpenter, Dawn Jones, and Georgia Luce. However, as the R&R notes, the motion sets forth no substantive argument regarding Jones. (ECF No. 60 at 1.) 2Judge Cobb utilized the court’s discretion to allow the supplement pursuant to Local Rule 7-2. (ECF No. 60 at 1 n.1.) 3The prejudice. Court previously dismissed Cox and other defendants from the lawsuit with 1 64). For the reasons discussed below, the Court agrees with Judge Cobb, and will accept 2 and adopt the R&R in its entirety. 3 II. BACKGROUND 4 Plaintiff is an inmate in the custody of the Nevada Department of Corrections 5 (“NDOC”) proceeding pro se with this action, pursuant to 42 U.S.C. § 1983. (ECF No. 7.) 6 On screening, Plaintiff was allowed to proceed with an Eighth Amendment deliberate 7 indifference to serious medical needs claim related to his dental care (ECF No. 11.) 8 Plaintiff’s 4th Amended Complaint (“Complaint”) chronicles a period from October 9 2014 4 through June 2016, wherein he sought for Defendants to address and treat his 10 dental issues. (ECF No. 7 at 4–5.) During this period, Plaintiff persistently complained of 11 missing, painful, swollen, teeth that were breaking and chipping and caused his gums to 12 be raw and bleeding. (See ECF No. 60 at 6–9 (providing these uncontested facts); see 13 ECF No. 21-6.) He reported that he was having difficulty eating, and on multiple occasions 14 requested a dental examination, partial dentures, and to be placed on a soft-food diet. (Id.) 15 A dentist was first provided to Plaintiff on January 6, 2015. (ECF No. 7 at 7.) Plaintiff 16 states that the dentist reported that Plaintiff “had two really bad teeth”—one which was 17 half missing and cracked all the way through, and another with a hole in it, causing the 18 sensitivity in Plaintiff’s mouth. (Id.) The dentist addressed the first tooth, but the other 19 remained (ECF No. 21-1 at 15; ECF N. 21-6 at 9; ECF No. 27 at 52) and Plaintiff’s 20 conditions and requests continued (ECF No. 21-6 at 9–13, 18–19; ECF No. 27 at 52–64, 21 83). Plaintiff was ultimately sent to another facility for a dental care “treat and return.” (ECF 22 No. 7 at 6–7; ECF No. 21-6 at 14–15; ECF No. 27 at 83.) At that facility, Plaintiff received 23 a medical diet order dated September 23, 2015, for a soft diet due to “inadequate posterior 24 teeth for proper chewing” signed by Defendant Bitar. (ECF No. 27 at 81; ECF No. 7 at 7.) 25 Plaintiff states that Bitar informed him that Bitar could not treat the tooth or issue partials 26 /// 27 28 4While the Complaint chronicles events that begin in October 2014, the record documents that Plaintiff made requests for dental care in May and August 2014. (ECF No. 21-4 at 2; ECF No. 21-6 at 2; ECF No. 27 at 42, 66.) 2 1 because he was only temporarily at the facility and treatment would be over several 2 procedures. (ECF No. 7 at 7.) Finally, Plaintiff made a request to his home facility on June 3 13, 2016, wherein he states he had been submitting kite requests for over a year seeking 4 dental treatment and partials, but had not been seen. (ECF No. 21-6 at 17.) 5 Plaintiff filed informal, first level, and second level grievances, which were 6 responded to by Defendants Jones, Carpenter, and Aranas, respectively. (ECF No. 7 at 7 5; ECF No. 21-1 at 1, 24, 32.) Further background regarding Plaintiff’s allegations is included in the R&R, which 8 9 10 the Court adopts. III. LEGAL STANDARDS 11 A. Review of Magistrate Judge’s Recommendation 12 This Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 14 timely objects to a magistrate judge’s report and recommendation, then the court is 15 required to “make a de novo determination of those portions of the [report and 16 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 17 to object, however, the court is not required to conduct “any review at all . . . of any issue 18 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, 19 the Ninth Circuit has recognized that a district court is not required to review a magistrate 20 judge’s report and recommendation where no objections have been filed. See United 21 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 22 employed by the district court when reviewing a report and recommendation to which no 23 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 24 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 25 district courts are not required to review “any issue that is not the subject of an objection.”). 26 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 27 accept the recommendation without review. See, e.g., id. at 1226 (accepting, without 28 review, a magistrate judge’s recommendation to which no objection was filed). 3 1 In light of Defendants’ objection, this Court finds it appropriate to engage in a de 2 novo review to determine whether to adopt Judge Cobb’s R&R. Upon reviewing the R&R, 3 the underlying briefs, and records in this case, this Court finds good cause to adopt the 4 R&R in full. 5 B. Summary Judgment Standard 6 “The purpose of summary judgment is to avoid unnecessary trials when there is no 7 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 8 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 9 the discovery and disclosure materials on file, and any affidavits “show there is no genuine 10 issue as to any material fact and that the movant is entitled to judgment as a matter of 11 law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is 12 a sufficient evidentiary basis on which a reasonable fact-finder could find for the 13 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 14 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where 15 reasonable minds could differ on the material facts at issue, however, summary judgment 16 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 17 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' 18 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 19 Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288–89 (1968)). In 20 evaluating a summary judgment motion, a court views all facts and draws all inferences in 21 the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 22 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 23 The moving party bears the burden of showing that there are no genuine issues of 24 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 25 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 26 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 27 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 28 produce specific evidence, through affidavits or admissible discovery material, to show 4 1 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 2 and “must do more than simply show that there is some metaphysical doubt as to the 3 material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita 4 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of 5 a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 6 477 U.S. at 252. 7 IV. DISCUSSION 8 As Judge Cobb notes in the R&R, Defendants—including Defendant Jones—solely 9 argue that they are entitled to summary judgment because they did not personally 10 participate in the alleged constitutional violation, and, that they therefore are entitled to 11 qualified immunity; and even if they did personally participate, they were not on notice that 12 such action could constitute personal participation. (ECF No. 60 at 3.) The objection to the 13 R&R essentially reasserts the argument upon which Defendants’ motions for summary 14 judgment is premised. (See ECF No. 61.) In doing so, Defendants particularly argue that 15 their discrete job duties do not authorize them to take steps to avert Plaintiff’s alleged 16 injury. (See id. at 7–14 (noting Aranas is the medical director for the NDOC, and that 17 Carpenter and Jones are registered nurses).) 18 Judge Cobb recommends granting summary judgment as to Defendant Luce, 19 finding there is no evidence that Luce participated in an alleged Eighth Amendment 20 violation related to Plaintiff’s dental care because she neither treated Plaintiff, nor made 21 any determinations regarding Plaintiff’s dental treatment. (ECF No. 60 at 3.) Nor did she 22 respond to Plaintiff’s grievances, requests or kites. (Id.) The Court agrees and adopts this 23 recommendation. 24 Judge Cobb additionally recommends that this Court deny the four remaining 25 Defendants’ request for summary judgment, finding they are not entitled to summary 26 judgment on the argued basis because Plaintiff put these Defendants on notice that he 27 was suffering pain due to lack of dental treatment, and the Defendants failed to act. (ECF 28 No. 60 at 10–14.) 5 1 First, Judge Cobb considered that Defendants Aranas and Carpenter’s only 2 involvement regarding the alleged constitutional violation was responding to Plaintiff’s first 3 (Carpenter) and second (Aranas) level grievances, but found such participation was 4 sufficient for subjecting Aranas and Carpenter to liability under the Eighth Amendment. 5 (Id. at 10–11; see also ECF No. 61.) See Colwell v. Bannister, 763 F.3d 1060, 1070 (9th 6 Cir. 2014) (declining to uphold summary judgment after concluding that a NDOC medical 7 director who had only denied a second-level grievance personally contributed to the 8 decision to refuse the plaintiff medical treatment); Snow v. McDaniel, 681 F.3d 978, 989 9 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th 10 Cir. 2014) (denying summary judgment to a warden and associate warden because in 11 addition to reviewing a “no-kneel” order, they were aware of grievances regarding 12 inappropriate medical treatment and the denial of recommended hip surgery “and failed to 13 act to prevent further harm” to the plaintiff). Judge Cobb also rejected Defendants’ 14 argument that they lacked notice that a grievance responder could be subject to liability 15 because the pertinent Ninth Circuit cases were decided in 2012 and 2014, and Plaintiff 16 initiated his grievance in this case in 2015. (Id. at 12.) 17 Defendants object to Judge Cobb’s recommendation and associated legal findings 18 (ECF No. 61), purporting that certain legal authority supports their argument that 19 responding to grievances is insufficient to meet the requirement of personal participation 20 to result in liability under the Eighth Amendment (id. at 7). 21 The Court agrees with Judge Cobb’s findings. The Court finds that authority 22 Defendants cite in their objection on the grievance issue are either not directly on point or 23 not fatal to the R&R’s findings. (See ECF No. 61 at 2.) Defendants’ other authority are 24 eclipsed and superseded by Ninth Circuit authority. (See id. at 7.) Additionally, the fact 25 that inmates have no constitutional right to prior grievance procedures 5 does not foreclose 26 the probability that Defendants violated the Eighth Amendment by, as Plaintiff contends, 27 /// 28 5Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), cert. denied, 488 U.S. 898. 6 1 failing to provide adequate and timely relief for what is a serious medical problem. See 2 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), rev’d on other grounds, WMX 3 Tech, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (noting that a claim for deliberate 4 indifference involves the “examination of two elements: the seriousness of the prisoner’s 5 medical need and the nature of the defendant’s response to that need”); Hunt v. Dental 6 Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (citations and quotation marks omitted) (“Dental 7 care is one of the most important medical needs of an inmate. Accordingly, the [E]ighth 8 [A]mendment requires that prisoners be provided with a system of ready access to 9 adequate dental care.”). 10 Next, Defendant Jones admits that she responded to at least four of Plaintiffs dental 11 care requests, between March 2015 and May 2015, with the statement “[u]nfortunately we 12 do not have a dentist available at this time. You will be placed on the scheduled [sic] to be 13 seen when we have a dentist available.” (ECF No. 61 at 11.) Notably, Jones also reviewed 14 and responded to Plaintiff’s informal level grievance. This Court agrees with Judge Cobb 15 that there is sufficient evidence establishing Jones’ personal participation. (ECF No. 60 at 16 14.) Defendants do not otherwise foreclose the likelihood that Jones may be liable for the 17 alleged constitutional violation. 18 Finally, Defendants’ objection sets forth no substantive argument with respects to 19 Defendant Bitar. Bitar submitted a motion for enlargement of time to file a separate 20 substantive objection. (ECF No. 62.) The Court granted Bitar’s request (ECF No. 63), but 21 he failed to provide his objection. In any event, the Court agrees with Judge Cobb that 22 Plaintiff has “at least raised a genuine dispute of material fact” regarding Bitar’s 23 participation in Plaintiff’s care, whether he provided care to Plaintiff, and whether he was 24 deliberately indifferent to Plaintiff’s serious medical needs. (ECF No. 60 at 13.) 25 Based on the foregoing, the Court adopts the R&R in full, because genuine issues 26 of material fact exist as to whether the remaining four Defendants were deliberately 27 indifferent to Plaintiff’s dental care needs. The Court is not swayed by Defendants’ attempt 28 to obtain summary judgment based on their discrete job duties. 7 1 V. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several cases 3 not discussed above. The Court has reviewed these arguments and cases and determines 4 that they do not warrant discussion as they do not affect the outcome of the motions and 5 objection before the Court. 6 7 8 9 10 It is therefore ordered that the Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 60) is adopted and accepted in full. It is further ordered that Defendants’ motions for summary judgment (ECF Nos. 21, 46) are denied. DATED THIS 20th day of August 2018. 11 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?