DePetro v. Scally

• Court: District Court, D. Nevada
• Decided: January 26, 2024
• Docket: 2:22-cv-00817
• Status: Unknown

Opinion

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 FRANK DePETRO, Case No. 2:22-cv-00817-MMD-NJK 7 Plaintiff, ORDER 8 v. 9 MICHAEL MINEV, et al., 10 Defendants. 11 12 13 I. SUMMARY 14 Pro se plaintiff Frank DePetro, who is incarcerated by the Nevada Department of 15 Corrections (“NDOC”) at High Desert State Prison (“HDSP”), brings this action against 16 four HDSP employees for their failure to address his chronic back pain. Before the 17 Court are the parties’ cross-motions for summary judgment1 (ECF Nos. 28, 40 18 (“Motions”)), Plaintiff’s motions for leave to file supplemental exhibits (ECF Nos. 36, 64), 19 and Defendants’ motions to seal (ECF Nos. 41, 45). For the following reasons, the 20 Court will deny Plaintiff’s Motion, deny Defendants’ Motion as to the Eighth Amendment 21 claims and grant Defendants’ Motion as to the Due Process claims, grant DePetro’s 22 motions for leave to file, and grant in part Defendants’ motions to seal. 23 II. BACKGROUND 24 The following facts are undisputed unless otherwise noted. 25 A. Medical Care and Kites 26

27 1The Court treats DePetro’s motion titled “Plaintiff’s Motion to find in Plaintiffs favor do to Evidance in Exhibits 1-5” (ECF No. 28) as a motion for summary judgment. 28 The Court has also reviewed the parties’ responses and replies. (ECF Nos. 44, 49, 51, 53, 56.) 1 Frank DePetro, an inmate at HDSP, began filing inmate medical request forms 2 (“kites”) regarding his severe back pain in August 2020. (ECF No. 28 at 22.) DePetro 3 sent three kites complaining of “really bad” back pain in 2020, and NDOC responded to 4 each saying that DePetro would be placed on a medical sick call list. (Id. at 22-24.) 5 DePetro sent another kite in April 2021 alerting HDSP medical staff that he was in 6 “excruciating pain” from the lower right side of his back down through his buttocks and 7 received the same response—that he would be placed on sick call—yet again. (ECF 8 No. 42-2 at 2.) 9 DePetro claims he did not see a provider for this issue for another eight months; 10 however, his medical chart does note that he was seen for complaining of back and 11 neck pain on September 23, 2020.2 (ECF Nos. 21 at 3; 46-4 at 4-5 (sealed).) DePetro 12 also filled prescriptions for ibuprofen at least five times between September 2020 and 13 March 2021. (ECF No. 42-3 at 7, 9-12, 16 (sealed).) 14 In December 2021, DePetro reinitiated filing kites about his back pain. (ECF No. 15 28 at 25-26.) NDOC responded to DePetro’s December 8th kite that he was already on 16 the provider’s list for this issue and that he would be seen when his turn arrived. (Id. at 17 25.) NDOC similarly responded to the December 30th kite that DePetro was scheduled 18 and would be notified the day of his appointment. (Id. at 26.) 19 During the early morning of December 25, 2021,3 DePetro’s back seized and 20

21 2Defendants assert that DePetro was examined by medical staff on September 23, 2020; December 11, 2020; February 2, 2021; March 26, 2021; and September 1, 22 2021. (ECF No. 53 at 3.) But only the September 23rd visit addressed his back pain. (ECF No. 42-4 at 6 (sealed).) The others concerned different ailments and were often in 23 specialized clinics, although his medical chart for December 11, 2020, states that there were “no other complaints noted.” (Id.) 24 DePetro responds that he was never seen by “sick call” for his back pain, as evidenced by the lack of his signature on sick call sign in sheets for September 23, 25 2020; February 2, 2021; and December 27, 2021. (ECF Nos. 64 at 2; 65 at 2-3.) He further asserts that he has not received the sick call sign-in sheets for December 11, 26 2020, or September 1, 2021, but his name is not on those lists either. (ECF No. 64 at 2.)

27 3Defendants do not dispute DePetro’s allegations about this incident, but they do not actively affirm them either. (ECF No. 40 at 3 (stating that “DePetro alleges” the following events, without providing any facts of their own).) Additionally, the handwritten 1 “went completely out.” (ECF No. 21 at 4.) DePetro laid on his cell floor for hours until his 2 cellmate alerted correctional officers, who in turn called medical staff. (Id.) Nurse Dennis 3 Tamban responded and, upon hearing that DePetro was in excruciating pain and could 4 not move, told DePetro to “get use[d] to it” because it would “be a while before [he saw] 5 a provider.” (Id.) Tamban also said, “There is nothing I can do for you at this time! It’s 6 Christmas and no one is here to help!” (ECF No. 49 at 34.) He then overhand threw a 7 bottle of ibuprofen at DePetro and walked away. (ECF Nos. 21 at 4; 49 at 34.) The 8 correctional officers had opened DePetro’s cell so that he could be examined, but 9 Tamban never entered to check DePetro’s condition. (ECF Nos. 21 at 5; 49 at 33-34.) 10 NDOC medical staff examined DePetro two days later. (ECF No. 46-4 at 4-5 11 (sealed).) During this visit, they diagnosed DePetro with lumbago, ordered an x-ray of 12 his lumbar spine, placed him on the sick call list, and noted that he would receive 13 analgesic cream. (Id.) The provider also noted that DePetro had experienced “severe 14 back pain” on December 25. (Id.) Medical staff saw DePetro again on January 25, 2022. 15 (Id. at 5.) The medical provider noted his “severe back pain” and reiterated that DePetro 16 required an x-ray and pain medication. (Id.) DePetro filled his first script for naproxen 17 sodium a few days later. (ECF No. 46-5 at 7.) 18 After another four weeks, DePetro’s back was x-rayed. (ECF No. 46-4 at 6 19 (sealed).) The reviewing physician found that DePetro’s spine was normally aligned but 20 that it showed minimal degenerative changes, “including tiny marginal osteophytes and 21 sclerotic changes of the lower facet joints.” (Id.) That same month, DePetro’s cellmate 22 wrote an affidavit stating that DePetro’s back pain made it difficult for DePetro to walk, 23 bend over, clean his body, and even get out of bed. (ECF No. 49 at 35.) 24 Naproxen sodium was dispensed to DePetro two more times in the spring of 25 26

27 notes in the medical documents are often difficult to decipher. Defendants rely on these records to support their Motion, but they have not offered any declaration from the authors of these notes to clarify the written texts. 1 2022.4 (ECF No. 46-5 at 4, 6 (sealed).) 2 In late May 2022, HDSP medical staff saw DePetro for his back pain again. (ECF 3 No. 46-4 at 5 (sealed).) DePetro’s on-and-off chronic pain was now radiating down to 4 his big toes, and a tingly pain traveled up to his neck. (Id.) An exam showed that it was 5 painful for DePetro to flex 45 degrees and on “SB,” likely referring to side bending.5 (Id.) 6 Naproxen sodium did not manage his pain. (Id.) The provider noted that the x-ray of 7 DePetro’s spine showed “mild DJD”—likely meaning degenerative joint disease6—and 8 that DePetro may qualify for back surgery. (Id.) DePetro’s prescription was changed to 9 meloxicam, and he filled the prescription twice, in both June and July 2022. (ECF No. 10 46-5 at 2-3 (sealed).) 11 DePetro received another examination for his back pain in December 2022, as 12 he was still experiencing a chronic “shooting” low back pain that was not responding to 13 his new medication. (ECF No. 65 at 5.) The pain radiated through his full right side, from 14 his lumbar area to his buttocks and up his leg. (Id.) The medical provider performed a 15 straight leg raise test,7 which showed “[nerve8] permanent ___ ®.” (Id.) The provider 16 once again noted that DePetro’s x-rays showed degenerative changes and diagnosed 17 4Defendants allege that DePetro was given naproxen sodium a third time, but 18 this is not evident from the proffered medical records. (ECF No. 46-5 (sealed).)

19 5The Court’s own research revealed that medical professionals use ‘SB’ as an abbreviation for side bending. See FED. R. EVID. 201; Mun Keong Kwan et al., Prediction 20 of Curve Correction Using Alternate Level Pedicle Screw Placement in Patients With Adolescent Idiopathic Scoliosis (AIS) Lenke 1 and 2 Using Supine Side Bending (SB) 21 and Fulcrum Bending (FB) Radiograph, 40 SPINE 1605 (2015), https://perma.cc/23AE- HCST. 22 6The Court’s research also revealed that ‘DJD’ is a medical abbreviation for 23 degenerative joint disease. See FED. R. EVID. 201; Degenerative Joint Disease (DJD) of the Spine, MEDSTAR HEALTH, https://perma.cc/DE4W-ZNZL. 24 7The Court’s research revealed that ‘SLR’ is an abbreviation for straight leg raise, 25 one of “the most commonly applied physical tests on patients with sciatica.” Janne Pesonen et al., Extending the Straight Leg Raise Test for Improved Clinical Evaluation 26 of Sciatica: Reliability of Hip Internal Rotation or Ankle Dorsiflexion, 22 BMC MUSCULOSKELETAL DISORDERS 303 (2021), https://perma.cc/7R5B-CR6R; see also FED. 27 R. EVID. 201.

8 The writing is not entirely legible but appears to be “nerve.” 1 DePetro with “Osteoarthritis LS spine.” (Id.) 2 About four months later in April 2023, DePetro filed yet another kite about his 3 back pain, alerting NDOC that his toes were now tingly and numb. (ECF No. 28 at 27.) 4 NDOC responded that he would be seen in approximately six to nine weeks. (Id.) The 5 next month, DePetro’s cellmate wrote an affidavit stating that DePetro’s back pain 6 limited his mobility so much that the cellmate had to help DePetro sit up, get water, and 7 get off the toilet, despite having limited mobility himself. (ECF No. 36 at 10.) The 8 cellmate also observed DePetro’s “constant suffering in pain and him pleading [with] 9 nurses at pill call to help him get in to see a doctor.” (Id.) DePetro continues to suffer 10 bouts of severe pain. (ECF No. 21 at 4.) 11 B. Grievance 12 On June 22, 2021, DePetro submitted an emergency grievance stating that he 13 was experiencing “excruciating pain” from his lower back to “all the way down [his] 14 legs.” (ECF No. 28 at 15.) Eleven weeks later, NDOC staff denied the emergency 15 grievance because it was “not an emergency per AR 740” and, for the fifth time, placed 16 DePetro on the sick call list. (Id.) DePetro formally disagreed two weeks later. (Id.) 17 DePetro then submitted an informal grievance about the same problems on 18 November 4, 2021.9 (ECF No. 44-2 at 6.) After hearing no response for three months, 19 DePetro filed a Second Level grievance stating that his informal grievance had 20 automatically moved on to the First Level on December 27, 2021. (ECF Nos. 40-1 at 6, 21 12; 49 at 19.) Though the Second Level grievance is incomplete, given the included 22 information and timing of its filing—45 days after December 27, 2021—it appears that 23 DePetro was noting that his grievance had progressed to the second level, since 24 NDOC’s 45-day response period had lapsed again. (ECF Nos. 40-1 at 6, 14; 49 at 19, 25 21.) Scally responded two months later that DePetro’s grievance was denied because 26

27 9DePetro’s original grievance is not in the record, but NDOC and DePetro’s responses indicate that he was complaining of inadequate medical treatment for his chronic back pain. (ECF Nos. 28 at 17-18; 49 at 19-21.) 1 he had not included copies of his previous submissions. (ECF No. 49 at 19.) Then in 2 June, DePetro appealed Scally’s denial on the grounds that copies of his Informal 3 Grievance had not yet come back and this was the first answer he had received. (Id. at 4 20.) A month later, DePetro again responded that he had included a copy of the 5 informal grievance with his First Level grievance, which was never responded to, “so 6 per A.R. 740.03[(8)] sect. B [he had] moved on.” (Id. at 21.) 7 It was not until June 2, 2022, that NDOC issued an official response denying 8 DePetro’s informal grievance on its merits because DePetro had seen a medical 9 provider in January, recently filled an order for naproxen, and laboratory testing and x- 10 rays had been ordered. (ECF No. 28 at 17.) Gutierrez then denied DePetro’s Level 1 11 grievance on August 2, 2022, because he had been seen by a provider in May and his 12 pain medications had been changed and ordered for a longer period. (Id. at 18.) Ten 13 days later, Scally issued a final rejection of DePetro’s Level 1 grievance for failure to 14 include his Informal Level documents. (Id. at 19-20.) 15 DePetro brought this case on May 24, 2022. (ECF No. 1-1.) He later filed his 16 second amended complaint naming Associate Warden J. Scally, AWP J. Williams, 17 Medical Director B. Gutierrez, and Nurse Dennis Tamban as defendants. (ECF Nos. 1- 18 1, 21 (“Complaint”).) Both parties now move for summary judgment. (ECF Nos. 28, 40.) 19 III. MOTIONS FOR SUMMARY JUDGMENT 20 The Motions both pertain to DePetro’s Eighth Amendment medical indifference 21 claims, and Defendants additionally raise the issues of exhaustion and qualified 22 immunity. (ECF Nos. 28, 40.) The Court will first address the issue of exhaustion, then 23 turn to arguments on the merits. See Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 24 2014). Due to remaining issues of fact, both Motions are denied as to all defendants, 25 except Defendants’ Motion is granted as to Plaintiff’s Due Process claims. 26 A. Exhaustion of Administrative Remedies 27 The Prison Litigation Reform Act (“PLRA”) provides that inmates cannot bring 1 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Proper exhaustion 2 requires that a grievant “use all steps the prison holds out, enabling the prison to reach 3 the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). However, 4 “[f]ailure to exhaust under the PLRA is ‘an affirmative defense the defendant must plead 5 and prove.’” Albino, 747 F.3d at 1166 (quoting Jones v. Bock, 549 U.S. 199, 204, 216 6 (2007)). In Nevada, NDOC’s Administrative Regulation (AR) 740 governs the grievance 7 process for inmates. (ECF No. 40-1 (“AR 740”).) See also NRS § 209.243. 8 Defendants allege three procedural defects in DePetro’s November 2021 9 grievance: first, that the grievance was untimely; second, that DePetro raised multiple 10 issues in a single grievance; and third, that the December 25, 2021, incident cannot be 11 considered part of the grievance because it occurred after the grievance was submitted. 12 (ECF No. 44 at 8.) None of these arguments holds merit, as explained below. 13 1. Timeliness 14 “[W]hen prison officials address the merits of a prisoner’s grievance instead of 15 enforcing a procedural bar, the state’s interests in administrative exhaustion have been 16 served.” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 2016). Waivable procedural bars 17 include the timeliness of a grievance. See Holden v. Nevada ex rel. Nev. Dep’t of Corr., 18 No. 3:16-CV-00064-MMD-WGC, 2018 WL 4566253, at *9 (D. Nev. Sept. 24, 2018). 19 NDOC responded to the merits of the November 2021 grievance at the Informal Level 20 and Level 1 without ever raising its timeliness. (ECF No. 28 at 17-20.) The sole 21 procedural issue NDOC raised was that DePetro had failed to attach all proper 22 documentation to his Level 1 and 2 grievances. (Id. at 19; ECF No. 49 at 19-21.) Any 23 timeliness objections are thus waived, as NDOC “had the opportunity to address the 24 grievance and correct their own errors and an administrative record has been 25 developed.” Reyes, 810 F.3d at 657. 26 2. Single-Issue Requirement 27 NDOC similarly failed to enforce the procedural rule allowing them to reject a 1 17-20.) Regardless of how many issues DePetro’s grievance contained, NDOC’s 2 response on the merits waived any objections to a multi-issue grievance. See Reyes, 3 810 F.3d at 657. 4 3. Incident on December 25, 2021 5 “A grievance suffices to exhaust a claim if it puts the prison on adequate notice of 6 the problem for which the prisoner seeks redress.” Sapp v. Kimbrell, 623 F.3d 813, 824 7 (9th Cir. 2010). NDOC’s AR 740 required only that that grievances factually 8 demonstrated a loss or harm and stated the action or remedy that would satisfy the 9 inmate’s claim. (ECF No. 40-1 at 4.) “Where, as here, a prison’s regulations are 10 incomplete as to the factual specificity required in an inmate’s grievance, a grievance 11 suffices if it alerts the prison to the nature of the wrong for which redress is sought.” 12 Sapp, 623 F.3d at 824 (cleaned up); see also Griffin, 557 F.3d at 1120 (finding a 13 grievance form provided little guidance as to what facts a grievance must include when 14 it simply instructed inmates to briefly describe the complaint and a proposed resolution). 15 DePetro’s multiple kites and grievances put NDOC officials on notice that he had 16 been receiving inadequate medical care for his back pain. See Sapp, 623 F.3d at 824; 17 Gomez v. Winslow, 177 F.Supp.2d 977, 982 (N.D. Cal. 2001). Each allegation in the 18 Complaint concerns DePetro’s efforts over multiple years to obtain treatment for 19 chronic, severe back pain. These allegations do not set forth several discrete causes of 20 action but rather are aspects of DePetro’s medical care claim, and thus DePetro need 21 not file multiple, successive grievances raising the same ongoing issue. See Gomez, 22 117 F.Supp.2d at 982; Reed v. Wash. State Dep’t of Corr., No. 3 :16-CV-05993-BHS- 23 DWC, 2021 WL 8086628, at *11-13 (W.D. Wash. Apr. 16, 2021), report and 24 recommendation adopted in part, rejected in part, No. C16-5993 BHS, 2022 WL 970148 25 (W.D. Wash. Mar. 31, 2022). Alleging that his back pain was inadequately treated again 26 after filing the November 2021 grievance does not change the nature of DePetro’s 27 action nor does it present new claims that were not administratively exhausted. Instead, 1 raised in his grievance. All allegations in the Complaint are thus fairly encompassed by 2 the medical care claim submitted in DePetro’s grievance. 3 B. Eighth Amendment Deliberate Indifference to Medical Needs 4 The Eighth Amendment prohibits the imposition of cruel and unusual punishment 5 and “embodies broad and idealistic concepts of dignity, civilized standards, humanity, 6 and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal quotations and 7 citation omitted). Prison officials violate the Eighth Amendment when they act with 8 “deliberate indifference” to the serious medical needs of an inmate. Id. at 104-05. “To 9 establish an Eighth Amendment violation, a plaintiff must satisfy both an objective 10 standard—that the deprivation was serious enough to constitute cruel and unusual 11 punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 12 681 F.3d 978, 985 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 744 13 F.3d 176, 1082-83 (9th Cir. 2014). 14 1. Objective Component 15 To meet the objective standard, “the plaintiff must show a serious medical need 16 by demonstrating that failure to treat a prisoner’s condition could result in further 17 significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 18 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). Serious medical needs 19 include those “that a reasonable doctor or patient would find important and worthy of 20 comment or treatment; the presence of a medical condition that significantly affects an 21 individual’s daily activities; or the existence of chronic and substantial pain.” Colwell v. 22 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). 23 DePetro has met this objective standard many times over. Failure to treat his 24 condition could result in further significant injury—especially once he began 25 experiencing numbness and tingling in his foot. (ECF No. 28 at 12 (noting that “sciatica 26 can potentially cause permanent nerve damage” and recommending that patients 27 1 experiencing loss of feeling in the affected leg seek immediate medical attention).)10 2 Even before his symptoms progressed that far, a reasonable doctor would have found 3 DePetro’s prolonged, severe, progressively worse back pain worthy of treatment. (Id. 4 (recommending calling a doctor if a patient’s sciatica “pain lasts longer than a week, is 5 severe or becomes progressively worse”).) Not only would a reasonable doctor 6 recommend DePetro seek medical care, but HDSP medical staff actually did see 7 DePetro, order diagnostic tests, and prescribe pain medications for his radiating back 8 pain. See Colwell, 763 at 1067. 9 The record further establishes that DePetro’s pain was chronic and substantial 10 and affected his daily activities. See id. at 1066. DePetro began sending kites 11 complaining of severe back pain that made it “hard to sleep” in August 2020. (ECF No. 12 28 at 22.) Though a medical record from December 2020 did not note any complaints 13 about DePetro’s back, just five days later DePetro sent another kite requesting 14 analgesic balm for his “really bad” back pain. (ECF Nos. 28 at 24; 46-4 at 6 (sealed).) 15 The next year, DePetro again complained of “excruciating pain” in his lower back and 16 upper right leg that now made it “hard to sleep and walk.” (Id. at 26.) DePetro had 17 described the pain a few weeks prior as being so severe that it took his breath away “on 18 some days for [weeks] at a time.” (Id. at 25.) Another year later, DePetro’s cellmate 19 noted that, because of his back pain, DePetro had trouble walking, bending over, and 20 cleaning himself. (ECF No. 49 at 35.) Then in April 2023, DePetro sent yet another kite 21 complaining of escalated symptoms—this time, tingly and numb toes on his right foot. 22 (ECF No. 28 at 27.) His cellmate at the time even noted that DePetro needed help with 23 basic movements like sitting up in bed and getting off the toilet. (ECF No. 36 at 10.) 24 DePetro’s pain clearly was not “a trifling matter.” Colwell, 763 F.3d at 1066 (noting that 25

26 10The Court takes judicial notice of information included in the Mayo Clinic’s page on sciatica, which DePetro included as an exhibit with his Motion. (ECF No. 28 at 11- 27 13). See also FED. R. EVID. 201. “Sciatica refers to pain that radiates along the path of the sciatic nerve, which branches from your lower back through your hips and buttocks and down each leg.” (ECF No. 28 at 11.) 1 “a bump or scrape or tummy ache” are not serious medical needs). 2 Defendants argue that the Court should follow Ninth Circuit social security 3 jurisprudence and require that DePetro provide “objective medical evidence of an 4 underlying impairment which could reasonably be expected to produce the pain or other 5 symptoms alleged.” (ECF No. 44 at 11 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 6 (9th Cir. 1996).) But Defendants have cited zero examples of this standard being 7 applied in Eighth Amendment contexts in the Ninth Circuit, and even if the social 8 security standard were to apply here (which the Court finds it does not), DePetro has 9 met it. The x-ray of his spine revealed tiny marginal osteophytes—more commonly 10 known as bone spurs.11 (ECF No. 46-4 at 7.) Per the Mayo Clinic, bone spurs are one 11 of the most common causes of sciatica, a medical term for pain that radiates from the 12 lower spine down the back of the leg and can cause numbness and tingling in the 13 affected leg or foot. (ECF No. 28 at 11-12.) These are symptoms repeatedly 14 documented in DePetro’s kites and medical charts. Thus, DePetro has established that 15 his bone spurs could have caused lower back and leg pain and numbness in his toes. 16 Whether the tiny bone spurs can “reasonably be expected to cause the severity of 17 symptom [DePetro] has alleged” is immaterial under this test, given that it accounts for 18 the “the highly subjective and idiosyncratic nature of pain and other such symptoms.” 19 Smolen, 80 F.3d at 1282. 20 2. Deliberate Indifference 21 To satisfy the subjective deliberate indifference prong, a plaintiff must show “(a) a 22 purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) 23 harm caused by the indifference.” Jett, 439 F.3d at 1096. “Indifference may appear 24 when prison officials deny, delay or intentionally interfere with medical treatment, or it 25 may be shown by the way in which prison physicians provide medical care.” Id. (internal 26 quotations omitted). In short, plaintiffs must establish that the course of treatment they 27 11See FED. R. EVID. 201; Bone Spurs (Osteophytes), CLEVELAND CLINIC, https://perma.cc/3FF8-DXWT. 1 were given was “medically unacceptable under the circumstances” and chosen “in 2 conscious disregard of an excessive risk to [their] health.” Colwell, 763 F.3d at 1068; 3 accord Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 4 DePetro alleges both acute indifference to his severe pain and long term 5 indifference via delayed grievance processing. 6 a. Incident on December 25, 2021 7 Both DePetro and an inmate in a neighboring cell have stated that Nurse 8 Tamban was called to DePetro’s cell while he was immobilized on the ground in pain, 9 refused to enter DePetro’s cell to examine him, dismissed DePetro’s request for help, 10 and threw a container of ibuprofen at him. (ECF Nos. 21 at 4; 49 at 33-34.) Defendants 11 do not dispute these allegations. (ECF Nos. 40 at 3, 13; 44 at 3-4; 53.) See also 12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). There is no evidence that 13 Tamban was otherwise involved in DePetro’s medical care. While a finding that the 14 “defendant’s neglect of a prisoner’s condition was an isolated occurrence . . . ordinarily 15 militates against a finding of deliberate indifference,” an “egregious” single failure 16 “strongly suggests that the defendant’s actions were motivated by deliberate 17 indifference to the prisoner's medical needs.” McGuckin v. Smith, 974 F.2d 1050, 1060- 18 61 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 19 1133 (9th Cir. 1997) (internal quotations omitted). 20 Tamban’s behavior could be considered egregious. DePetro told Tamban that he 21 was in excruciating pain and could not move, yet Tamban refused to enter DePetro’s 22 open cell to examine him. (ECF Nos. 21 at 4; 49 at 33-34.) Technically, Tamban did 23 provide pain medication to DePetro. But overhand throwing medicine at a patient who 24 has been laying on the ground in pain for hours and telling him to “get used to it” 25 suggests animus towards him, which in turn supports the conclusion that Tamban acted 26 with deliberate indifference in failing to examine DePetro. See Snow, 681 F.3d at 987 27 (“Evidence of an improper motive can support a conclusion that a defendant acted with 1 the circumstances,” considering Defendants have provided no evidence to explain why 2 Tamban, a nurse, refused to provide medical care beyond hurling pills at an 3 incapacitated patient. Colwell, 763 F.3d at 1068. A reasonable jury could therefore find 4 that Tamban was aware of, and disregarded, an excessive risk to DePetro’s health. See 5 Farmer v. Brennan, 511 U.S. 825, 837 (1994); Lolli v. Cnty. of Orange, 351 F.3d 410, 6 421 (9th Cir. 2003). 7 Viewed in the light most favorable to Defendants, however, the evidence is not 8 conclusive that Tamban acted with deliberate indifference. Material questions remain as 9 to whether DePetro faced an excessive risk to his health, whether Tamban was aware 10 of that risk, and what an appropriate medical response would be under these 11 circumstances. Both Motions are thus denied as to whether Tamban violated the Eighth 12 Amendment. 13 b. Grievance Processing Delays 14 DePetro alleges that Scally, Williams, and Gutierrez demonstrated deliberate 15 indifference to his serious medical needs by responding to his grievances in an untimely 16 manner and not scheduling medical appointments for him. (ECF No. 21 at 2, 4-5.) The 17 Court interprets these claims as alleging delayed medical treatment. For DePetro’s 18 delayed treatment claim to be successful, he must show that the delay resulted in injury. 19 See Stewart v. Aranas, 32 F.4th 1192, 1195 (9th Cir. 2022); Shapley v. Nev. Bd. of 20 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). The record clearly establishes 21 that DePetro suffered from severe chronic back pain for several months while his 22 grievance was being processed, “which is harm in and of itself, along with all of the 23 other harms and dangers that flow from that.” Colwell, 763 F.3d at 1068; see also 24 McGuckin, 974 F.2d at 1062 (finding that suffering an “unnecessary continuation of his 25 condition and pain caused [the plaintiff] ‘harm’ upon which a § 1983 claim can be 26 based”); Hunt v. Dental Dep’t, 865 F.2d 198, 201 (9th Cir. 1989) (finding that a three- 27 month delay in treatment created a genuine issue of material fact). While the harm to 1 As to Defendants’ alleged deliberate indifference, a reasonable jury could find 2 that the way Defendants addressed DePetro’s grievance evinced knowledge and 3 conscious disregard of his serious medical need. Viewing the evidence in the light most 4 favorable to DePetro, his November 2021 grievance likely included the same 5 information as his emergency grievance: that for over a year he had been experiencing 6 “excruciating pain” in his lower right back and down his legs. (ECF No. 49 at 13.) Each 7 of DePetro’s grievance reviewers should have personally reviewed and responded to 8 this grievance12 and thus been aware of DePetro’s condition. See Colwell, 763 F.3d at 9 1070; Snow, 681 F.3d at 989. And as evidenced in their grievance denials, Gutierrez 10 and Williams also reviewed DePetro’s medical records, which by February 2022 11 showed bone spurs and degenerative changes to his spine13 and by May 2022 showed 12 that he may qualify for back surgery and other additional treatments. (ECF Nos. 46-4 at 13 5-6 (sealed); 49 at 15-16.) Genuine issues of material fact thus remain regarding 14 Defendants’ subjective knowledge. 15 Any claims that Gutierrez, Scally, and Williams were not medical professionals 16 and thus had no basis to order treatment are similarly unavailing. They all had authority 17 to take remedial action to address DePetro’s grievance by affording him proper medical 18 care. (ECF No. 40-1 at 8.) See Colwell, 763 F.3d at 1065, 1069-70; cf. Mack v. Aranas, 19 No. 217CV02239APGEJY, 2021 WL 1535331, at *3 (D. Nev. Apr. 16, 2021)) (“[M]erely 20 denying a grievance without some decision-making authority or ability to resolve the 21 12There is some uncertainty as to what information each grievance reviewer had 22 access to but viewing the evidence in the light most favorable to DePetro, a rational trier of fact could reasonably find that they were all aware of his situation. (ECF No. 49 at 15- 23 21.)

24 13Defendants argue that DePetro’s x-rays did not demonstrate a serious medical condition because they showed no injury to his back, citing numerous cases where 25 normal x-rays undermined claims of deliberate indifference. (ECF No. 44 at 14.) While Defendants are correct that DePetro’s x-ray does not show an acute injury, it did show 26 bone spurs and degenerative changes. (ECF No. 46-4 at 6 (sealed).) Providers reviewing those x-rays diagnosed DePetro with degenerative joint disease and 27 osteoarthritis in his spine, and even noted he may qualify for back surgery and other treatments. (Id. at 5; ECF No. 65 at 5.) This, at the very least, raises questions as to whether DePetro’s x-ray was normal. 1 underlying issue grieved is not enough to establish personal participation.”). Unlike the 2 defendant in Peralta v. Dillard, their roles were not “largely administrative.” 744 F.3d at 3 1086 (finding the reviewer of a second-level grievance had a “largely administrative” 4 role because he was only expected to ensure that two other medical professionals had 5 signed off on a reasonable course of treatment). Again, Williams and Gutierrez both 6 independently reviewed DePetro’s claims and read his medical records. Cf. id. (finding 7 no awareness of risk where a grievance reviewer did not independently review the 8 plaintiff’s claims or read his chart). DePetro even reasserted on June 5, 2022, that 9 “HDSP [had] failed to correct anything,” suggesting that the medical visits Defendants 10 cited to were inadequate to address his grievance. (ECF No. 49 at 20.) But the three 11 Defendants still failed to take any action to prevent further harm. Instead, they waited 12 several additional months—until after DePetro had already been seen by medical 13 staff—to deny his grievance. (Id. at 12, 14-15 (giving NDOC 45 days to respond to 14 informal and First Level grievances and 60 days to respond to Second Level 15 grievances).) Several factual questions remain, and as a result, both Motions are denied 16 as to whether Gutierrez, Scally, or Williams acted with deliberate indifference in 17 delaying DePetro’s medical treatment. 18 C. Due Process Claims14 19 “The right of meaningful access to the courts extends to established prison 20 grievance procedures” because exhaustion of the grievance process is a prerequisite 21 for suits challenging conditions of confinement. Bradley v. Hall, 64 F.3d 1276, 1279 (9th 22 Cir. 1995), overruled on other grounds by Shaw v. Murphy, 532 U.S. 223, 230 n.2 23 (2001); see also 42 U.S.C. § 1997e(a). Despite having a constitutional right to file 24 grievances, “inmates lack a separate constitutional entitlement to a specific prison 25 grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). There is 26 no dispute that the responses to DePetro’s grievances were untimely under AR 740. 27 14The Court interprets DePetro’s Complaint as also raising a due process concern. 1 However, DePetro has not provided evidence that the delayed grievance responses 2 frustrated or impeded a nonfrivolous legal claim, such as by barring his access to a 3 remedy or causing him to miss a filing deadline. See Lewis v. Casey, 518 U.S. 343, 349 4 (1996); Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011). Thus, 5 DePetro’s claims against Scally, Wiliams, and Gutierrez regarding the timeliness with 6 which they processed his grievances are not actionable under the Due Process Clause. 7 D. Qualified Immunity 8 Defendants further argue that they are entitled to qualified immunity. When 9 determining whether a state official is entitled to qualified immunity at the summary 10 judgment stage, courts consider “(1) whether the evidence viewed in the light most 11 favorable to the plaintiff is sufficient to show a violation of a constitutional right and (2) 12 whether that right was clearly established at the time of the violation.” Sandoval v. Cnty. 13 of San Diego, 985 F.3d 657, 671 (9th Cir. 2021), cert. denied sub nom. San Diego Cnty. 14 v. Sandoval, 142 S.Ct. 711 (2021) (citation and quotation marks omitted). Factual 15 circumstances in previous cases need not be “fundamentally similar or materially 16 similar” for state officials to be on notice that their conduct violates established law. Id. 17 at 680 (cleaned up). 18 As discussed above, the Court has found that there are genuine issues of 19 material fact regarding whether Defendants were deliberately indifferent to DePetro’s 20 medical needs. These remaining factual questions also bear on whether they violated 21 clearly established rights and thus are entitled to qualified immunity. If DePetro’s version 22 of the facts prevails, there is a reasonable likelihood that Tamban is not entitled to 23 qualified immunity. See Lolli, 351 F.3d at 421 (holding that a jury could reasonably infer, 24 where an inmate exhibited and alerted officers to symptoms associated with his alleged 25 harm and requested assistance, those officers knew of the risk of harm faced if the 26 inmate was denied medical attention); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 27 2002) (finding officers were subjectively aware of plaintiffs’ serious medical needs due 1 indifferent in delaying their treatment for a painful, non-life threatening condition for four 2 hours); Sandoval, 985 F.3d at 680-81 (holding that a nurse who “made essentially no 3 effort” to determine why the plaintiff was suffering from his reported symptoms, 4 abandoned the plaintiff, and failed to pass along any information to the nurses who 5 relieved him was not entitled to qualified immunity). The same applies to Gutierrez, 6 Scally, and Williams. See Stewart, 32 F.4th at 1195 (“At some point ‘wait and see’ 7 becomes deny and delay.”); Snow, 681 F.3d at 988 (holding prison officials violate the 8 constitution when they persist in a treatment known to be ineffective); Colwell, 763 F.3d 9 at 1070-71 (finding that denying a grievance in the face of a recommendation for further 10 treatment could constitute an Eighth Amendment violation). Defendants’ motion is thus 11 denied as to qualified immunity. See Lolli, 351 F.3d at 421-22; Clement, 298 F.3d at 12 906. 13 IV. MOTION FOR LEAVE TO FILE 14 DePetro filed two motions for leave to file new exhibits in support of his Motion, to 15 which Defendants filed a notice of non-opposition.15 (ECF Nos. 36, 64, 65, 68.) As 16 DePetro proceeds pro se, the exhibits are relevant to the Motions, and Defendants do 17 not object to their filing, the Court grants DePetro’s motions for leave to file and 18 considers these exhibits in resolving the Motions. See Fed. Trade Comm’n v. Consumer 19 Def., LLC, No. 2:18-CV-30 JCM (PAL), 2019 WL 1916193, at *5 (D. Nev. Apr. 30, 20 2019). 21 V. MOTIONS TO SEAL 22 In the Ninth Circuit, there is “a strong presumption in favor of access to court 23 records.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). 24 To overcome this presumption, a party must articulate “compelling reasons” justifying 25 nondisclosure. Kamakana v. City of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). In 26

27 15Defendants affirmatively stated their non-opposition to only DePetro’s second motion for leave to file. (ECF No. 68.) But the Court reads Defendants’ silence on his first motion for leave to file as implied non-opposition. 1 two identical motions, Defendants seek to file under seal five exhibits containing 2 sensitive medical information about DePetro. (ECF Nos. 41 at 3; 42-1–42-5 (sealed); 44 3 at 3; 45-1–45-5 (sealed).) 4 There are no compelling reasons justifying the non-disclosure of Exhibit C, which 5 contains several kites that DePetro has already publicly filed in this docket. (ECF Nos. 6 21 at 22-25; 42-2; 45-2.) The only kite which is not already in the public record simply 7 reiterates what the six public kites already say: that DePetro’s back pain was 8 “excruciating” and radiating down his leg, and that this was the fourth or fifth kite he had 9 sent regarding this issue. (ECF No. 42-2 at 2; 45-2 at 2.) Sealing information that has 10 already been disclosed would do little to protect its confidentiality. Defendants’ motion to 11 seal is therefore denied as to Exhibit C. 12 All other exhibits filed under seal contain extensive personal medical information 13 about DePetro, much of which is irrelevant to the matter at hand. (ECF Nos. 42-1, 42-3– 14 42-5, 45-1, 45-3–45-5 (sealed).) The Court thus grants Defendants’ motions to seal 15 Exhibits B, E, F, and G given the consensus amongst Ninth Circuit district courts16 that 16 “the need to protect medical privacy qualifies as a ‘compelling reason’ for sealing 17 records.” Steven City Broomfield v. Aranas, No. 17-CV-00683-MMD-WGC, 2020 WL 18 2549945, at *2 (D. Nev. May 19, 2020). 19 VI. CONCLUSION 20 The Court notes that the parties made several arguments and cited several 21 cases not discussed above. The Court has reviewed these arguments and cases and 22 determines that they do not warrant discussion as they do not affect the outcome of the 23

24 16See Paez v. Akima Support Operations LLC, No. 2:21-CV-01920-DAD-AC, 2022 WL 14129916, at *1 (E.D. Cal. Oct. 24, 2022); Pratt v. Gamboa, No. 17-CV- 25 04375-LHK, 2020 WL 8992141, at *2 (N.D. Cal. May 22, 2020); Johnsen v. Tambe, No. 19-141-TSZ-MLP, 2019 WL 4014256, at *2 (W.D. Wash. Aug. 26, 2019); Gary v. Unum 26 Life Ins. Co. of Am., No. 3:17-CV-01414-HZ, 2018 WL 1811470, at *3 (D. Or. Apr. 17, 2018); Bloss v. Twin Falls Cnty., No. 1:15-CV-00467-BLW, 2017 WL 3659164, at *7 (D. 27 Idaho Aug. 24, 2017); Abbey v. Haw. Emps. Mut. Ins. Co., No. CIV. 09-000545 SOM, 2010 WL 4715793, at *1 (D. Haw. Nov. 15, 2010); Lombardi v. TriWest Healthcare All. Corp., No. CV-08-02381-PHX-FJM, 2009 WL 1212170, at *1 (D. Ariz. May 4, 2009). 1 || Motion. 2 It is therefore ordered that Plaintiff's motion for summary judgment (ECF No. 28) 3 || is denied. 4 It is further ordered that Defendants’ motion for summary judgment (ECF No. 40) 5 || is granted in part and denied in part. It is granted only as to Plaintiffs Due Process 6 || claims; it is otherwise denied. 7 It is further ordered that Plaintiff's motions for leave to file additional exhibits 8 || (ECF Nos. 36, 64, 65) are granted. 9 It is further ordered that Defendants’ motions to seal (ECF Nos. 41, 44) are 10 || granted for Exhibits B, E, F, and G and denied for Exhibit C. 11 The Clerk of Court is directed to unseal Exhibit C. (ECF Nos. 42-2, 46-2.) 12 DATED THIS 26" Day of January 2024. 13 ( 14 15 MIRANDA M. DU 16 CHIEF UNITED STATES DISTRICT JUDGE

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