1 |] AARON D. FORD Attorney General 2 || DOUGLAS R. RANDS, Bar No. 3572 Senior Deputy Attorney General 3 || State of Nevada 100 N. Carson Street 4 || Carson City, Nevada 89701-4717 Tel: (775) 684-1150 5 ||E-mail: drands@ag.nv.gov 6 || Attorneys for Defendants David Mar, and Marsha Johns
8 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 || TODD EVANS, Case No. 3:18-cv-00283-RCJ-CSD
PROPOSED JOINT PRETRIAL ORDER v. 13 || JAMES DZURENDA, et al., 14 Defendants. 15 Following pretrial proceedings in this case, 16 IT IS ORDERED: NATURE OF ACTION AND CONTENTIONS OF THE PARTIES 18 A. NATURE OF ACTION 19 This is a pro se prisoner civil rights action brought by Todd Evans, (Plaintiff), asserting claims 20 |/arising under 42 U.S.C. § 1983. Plaintiff alleges an Eighth Amendment claim for deliberate 21 || indifference to serious medical needs. Plaintiff sued multiple defendants for events that took place while he was incarcerated at 23 || Northern Nevada Correctional Center (“NNCC”). (ECF No. I-1 at 2). He sued James Dzurenda, 24 ||Romeo Aranas, Dr. Johns, and Dr. Mar. (Id. at 2-3.) Plaintiff alleged three counts. 25 This Court granted summary judgment to the Defendants, Aranas and Dzurenda. The Court 26 || allowed the other Eighth Amendment Counts to proceed against the remaining Defendants. Therefore, 27 || this matter is proceeding on Plaintiff's Count III, where he claims Defendants were deliberately 28
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1 || indifferent to his medical condition. The Court held, in summary judgment, that Plaintiff could proceed 2 on his claims of deliberate indifference prior to the MRI in May of 2018. (ECF No. 145 at 2:28) 3 B. CONTENTIONS OF THE PARTIES 4 1. Plaintiff's Contentions 5 In his third cause of action, Plaintiff alleges he began suffering pain in his neck, head and back 6 2017. (ECF No. 60 at 11). He alleges balance issues and falls. Plaintiff alleges that on or about July 7 2017 he filed a grievance requesting medical care for these symptoms. The symptoms worsened and 8 || he continued to request m Saical cone d Jb aN Mitten en quest me care. (Id.) On or about May, 2018 he received an MRI which revealed 9 pituitary tumor. The tumor was removed in April, 2019. Plaintiff alleges the delay was due to the 10 |} cost of the procedure. (Id.) He further alleges that Dr. John and Dr. Mar were aware of his condition 11 |/and intentionally interfered with the treatment due to the cost of the treatment. He alleges the delay 12 || was medically unacceptable and made in conscious disregard of an excessive risk to his health. (Id.) 13 || The Court allowed him to proceed on a claim of violation of his Eighth Amendment rights. (ECF No. 14 15 Zz Defendants’ Contentions 16 Defendants contend that the evidence does not support Plaintiff's allegations. Defendants 17 || incorporate any Affirmative Defenses from the Answer as it pertains to Defendants. Defendants deny 18 || that Plaintiff's constitutional rights have been violated. 19 C. RELIEF SOUGHT 20 Plaintiff seeks compensatory and punitive damages. 21 STATEMENT OF JURISDICTION This is a civil action commenced under 42 U.S.C. § 1983. This Court has jurisdiction pursuant 23 |/to 28 U.S.C. § 1331. 24 |/III. UNCONTESTED FACTS ADMITTED BY THE PARTIES WHICH REQUIRE NO PROOF 25 26 1. Mr. Evans, in this matter has filed a Complaint alleging violations of his 27 ||constitutional rights under the Eighth Amendment. (ECF No.60). 28
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1 2. At all times relevant in the Complaint, Plaintiff was in lawful custody of the Nevada 2 Department of Corrections (“NDOC”) housed at Northern Nevada Correctional Center (NNCC) (ECF 3 || No. 60 at 3). 4 3. Defendant Marsha Johns was previously employed by the NDOC as a senior physician. 5 4, Defendant David Mar was previously employed by the NDOC as a senior physician. 6 5: Plaintiff claims there was a delay in surgical treatment for his pituitary, tumor due to the 7 || cost of the treatment. (ECF No. 60 at 11) :
8 6. Plaintiff received an MRI and surgical treatment for the tumor. 9 Plaintiff does feel the cost and delays were part of this lawsuit and was “told so”. 10 FACTS UNADMITTED THAT WILL NOT BE CONTESTED 11 The following facts, though not admitted, will not be contested at trial by evidence to the 12 || contrary: NONE. 13 CONTESTED ISSUES OF FACT TO BE TRIED AND DETERMINED UPON TRIAL 14 A. PLAINTIFF’S CONTESTED FACTS 15 See Complaint. 16 B. DEFENDANTS’ CONTESTED FACTS 17 l. Whether Plaintiff has met his burden of producing evidence supporting the facts set 18 || forth above, i.e. whether he can prove that the individual defendants violated his Eighth Amendment 19 || rights? 20 2 Whether any form of damages is available to Plaintiff for any alleged failures? 21 ||VI. © CONTESTED ISSUES OF LAW TO BE TRIED AND DETERMINED UPON TRIAL 22 A. PLAINTIFF 23 1. Whether or not the claim against Defendants, violates Plaintiff's Constitutional rights, 24 do the facts warrant a damage award? 25 B. DEFENDANT 26 I, Did Defendant individually violate Plaintiff's constitutional rights? 27 Be Did Mr. Evans prove the elements of a violation of his Eighth Amendment rights? To 28 sustain an Eighth Amendment claim based on deficient medical treatment, a Plaintiff must show that
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1 ||the defendants were deliberately indifferent to the Plaintiff's serious medical needs. Estelle v. Gamble, 2 U.S. 97, 104 (1976). Deliberate indifference requires proof of two elements: (1) a serious medical 3 ||need and (2) the defendant’s deliberate indifference in response. McGuckin v. Smith, 974 F.2d 1050, 4 (9th Cir. 1992), overruled on other grounds, WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 5 Cir. 1997). The second element requires proof that the defendants knew of the excessive 6 ||risk to an inmate’s health and disregarded the risk. Farmer y. Brennan, 511 U.S. 825, 837 (1994). 7 A difference of opinion between an inmate and medical staff as to the appropriate medical 8 ||treatment for his condition is insufficient to establish deliberate indifference as a matter of law. See 9 || Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Likewise, a difference of opinion between 10 ||medical professionals concerning the appropriate course of treatment generally does not amount to 11 || deliberate indifference to serious medical needs. Toguchi, 391 F.3d at 1059-60. “[T]o prevail on a 12 ||claim involving choices between alternative courses of treatment, a prisoner must show that the chosen 13 ||course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in 14 || conscious disregard of an excessive risk to the prisoner’s health.’” Toguchi, 391 F.3d at 1058. 15 Other Courts have held likewise. Courts have held; “a simple difference in medical opinion 16 || between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment [fails 17 support a claim of cruel and unusual punishment.” Harris v Thigpen, 941 F.2d 1495 at 1505 (11" 18 1991); accord, e.g., Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir.
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1 |] AARON D. FORD Attorney General 2 || DOUGLAS R. RANDS, Bar No. 3572 Senior Deputy Attorney General 3 || State of Nevada 100 N. Carson Street 4 || Carson City, Nevada 89701-4717 Tel: (775) 684-1150 5 ||E-mail: drands@ag.nv.gov 6 || Attorneys for Defendants David Mar, and Marsha Johns
8 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 10 || TODD EVANS, Case No. 3:18-cv-00283-RCJ-CSD
PROPOSED JOINT PRETRIAL ORDER v. 13 || JAMES DZURENDA, et al., 14 Defendants. 15 Following pretrial proceedings in this case, 16 IT IS ORDERED: NATURE OF ACTION AND CONTENTIONS OF THE PARTIES 18 A. NATURE OF ACTION 19 This is a pro se prisoner civil rights action brought by Todd Evans, (Plaintiff), asserting claims 20 |/arising under 42 U.S.C. § 1983. Plaintiff alleges an Eighth Amendment claim for deliberate 21 || indifference to serious medical needs. Plaintiff sued multiple defendants for events that took place while he was incarcerated at 23 || Northern Nevada Correctional Center (“NNCC”). (ECF No. I-1 at 2). He sued James Dzurenda, 24 ||Romeo Aranas, Dr. Johns, and Dr. Mar. (Id. at 2-3.) Plaintiff alleged three counts. 25 This Court granted summary judgment to the Defendants, Aranas and Dzurenda. The Court 26 || allowed the other Eighth Amendment Counts to proceed against the remaining Defendants. Therefore, 27 || this matter is proceeding on Plaintiff's Count III, where he claims Defendants were deliberately 28
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1 || indifferent to his medical condition. The Court held, in summary judgment, that Plaintiff could proceed 2 on his claims of deliberate indifference prior to the MRI in May of 2018. (ECF No. 145 at 2:28) 3 B. CONTENTIONS OF THE PARTIES 4 1. Plaintiff's Contentions 5 In his third cause of action, Plaintiff alleges he began suffering pain in his neck, head and back 6 2017. (ECF No. 60 at 11). He alleges balance issues and falls. Plaintiff alleges that on or about July 7 2017 he filed a grievance requesting medical care for these symptoms. The symptoms worsened and 8 || he continued to request m Saical cone d Jb aN Mitten en quest me care. (Id.) On or about May, 2018 he received an MRI which revealed 9 pituitary tumor. The tumor was removed in April, 2019. Plaintiff alleges the delay was due to the 10 |} cost of the procedure. (Id.) He further alleges that Dr. John and Dr. Mar were aware of his condition 11 |/and intentionally interfered with the treatment due to the cost of the treatment. He alleges the delay 12 || was medically unacceptable and made in conscious disregard of an excessive risk to his health. (Id.) 13 || The Court allowed him to proceed on a claim of violation of his Eighth Amendment rights. (ECF No. 14 15 Zz Defendants’ Contentions 16 Defendants contend that the evidence does not support Plaintiff's allegations. Defendants 17 || incorporate any Affirmative Defenses from the Answer as it pertains to Defendants. Defendants deny 18 || that Plaintiff's constitutional rights have been violated. 19 C. RELIEF SOUGHT 20 Plaintiff seeks compensatory and punitive damages. 21 STATEMENT OF JURISDICTION This is a civil action commenced under 42 U.S.C. § 1983. This Court has jurisdiction pursuant 23 |/to 28 U.S.C. § 1331. 24 |/III. UNCONTESTED FACTS ADMITTED BY THE PARTIES WHICH REQUIRE NO PROOF 25 26 1. Mr. Evans, in this matter has filed a Complaint alleging violations of his 27 ||constitutional rights under the Eighth Amendment. (ECF No.60). 28
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1 2. At all times relevant in the Complaint, Plaintiff was in lawful custody of the Nevada 2 Department of Corrections (“NDOC”) housed at Northern Nevada Correctional Center (NNCC) (ECF 3 || No. 60 at 3). 4 3. Defendant Marsha Johns was previously employed by the NDOC as a senior physician. 5 4, Defendant David Mar was previously employed by the NDOC as a senior physician. 6 5: Plaintiff claims there was a delay in surgical treatment for his pituitary, tumor due to the 7 || cost of the treatment. (ECF No. 60 at 11) :
8 6. Plaintiff received an MRI and surgical treatment for the tumor. 9 Plaintiff does feel the cost and delays were part of this lawsuit and was “told so”. 10 FACTS UNADMITTED THAT WILL NOT BE CONTESTED 11 The following facts, though not admitted, will not be contested at trial by evidence to the 12 || contrary: NONE. 13 CONTESTED ISSUES OF FACT TO BE TRIED AND DETERMINED UPON TRIAL 14 A. PLAINTIFF’S CONTESTED FACTS 15 See Complaint. 16 B. DEFENDANTS’ CONTESTED FACTS 17 l. Whether Plaintiff has met his burden of producing evidence supporting the facts set 18 || forth above, i.e. whether he can prove that the individual defendants violated his Eighth Amendment 19 || rights? 20 2 Whether any form of damages is available to Plaintiff for any alleged failures? 21 ||VI. © CONTESTED ISSUES OF LAW TO BE TRIED AND DETERMINED UPON TRIAL 22 A. PLAINTIFF 23 1. Whether or not the claim against Defendants, violates Plaintiff's Constitutional rights, 24 do the facts warrant a damage award? 25 B. DEFENDANT 26 I, Did Defendant individually violate Plaintiff's constitutional rights? 27 Be Did Mr. Evans prove the elements of a violation of his Eighth Amendment rights? To 28 sustain an Eighth Amendment claim based on deficient medical treatment, a Plaintiff must show that
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1 ||the defendants were deliberately indifferent to the Plaintiff's serious medical needs. Estelle v. Gamble, 2 U.S. 97, 104 (1976). Deliberate indifference requires proof of two elements: (1) a serious medical 3 ||need and (2) the defendant’s deliberate indifference in response. McGuckin v. Smith, 974 F.2d 1050, 4 (9th Cir. 1992), overruled on other grounds, WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 5 Cir. 1997). The second element requires proof that the defendants knew of the excessive 6 ||risk to an inmate’s health and disregarded the risk. Farmer y. Brennan, 511 U.S. 825, 837 (1994). 7 A difference of opinion between an inmate and medical staff as to the appropriate medical 8 ||treatment for his condition is insufficient to establish deliberate indifference as a matter of law. See 9 || Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Likewise, a difference of opinion between 10 ||medical professionals concerning the appropriate course of treatment generally does not amount to 11 || deliberate indifference to serious medical needs. Toguchi, 391 F.3d at 1059-60. “[T]o prevail on a 12 ||claim involving choices between alternative courses of treatment, a prisoner must show that the chosen 13 ||course of treatment ‘was medically unacceptable under the circumstances,’ and was chosen ‘in 14 || conscious disregard of an excessive risk to the prisoner’s health.’” Toguchi, 391 F.3d at 1058. 15 Other Courts have held likewise. Courts have held; “a simple difference in medical opinion 16 || between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment [fails 17 support a claim of cruel and unusual punishment.” Harris v Thigpen, 941 F.2d 1495 at 1505 (11" 18 1991); accord, e.g., Lamb v. Norwood, 899 F.3d 1159, 1162 (10th Cir. 2018) (“We have 19 || consistently held that prison officials do not act with deliberate indifference when they provide medical 20 || treatment even if it is subpar or different from what the inmate wants.”); Kosilek v. Spencer, 774 F.3d 21 ||63, 82 (Ist Cir. 2014) (en banc) (“[The Eighth Amendment] does not impose upon prison 22 ||administrators a duty to provide care that is ideal, or of the prisoner's choosing.”). See also, King v 23 || Calderwood, 2016 WL 4771065 (D. Nev. 2016) aff'd sub nom. King v. Cox, 692 F. App'x 398 (9th Cir. 24 |/2017) where District Judge Navarro granted summary judgment finding no evidence of deliberate 25 || indifference on the part of NDOC physicians for failure to treat an inmate’s hepatitis condition with a 26 || specific medication. 27 /// 28 || ///
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1 || VII. EXHIBITS 2 A. STIPULATED EXHIBITS AS TO AUTHENTICITY AND ADMISSIBILITY 3 ls Administrative Regulation 613 4 2. Administrative Regulation 740 (March, 2017). 5 3 Administrative Regulation 639 6 B. STIPULATED EXHIBITS AS TO AUTHENTICITY BUT NOT ADMISSIBILITY 7 None. 8 C. PLAINTIFF’S EXHIBITS SUBJECT TO OBJECTIONS 9 1. All records supplied love 147) ane AMENDED Larnapheys} (FP o) 10 2. All Medical records □□□ 7 af aan bare i 3, Discovery Responses from all parties. PIVSE List Of 12 4, All documents disclosed by Defendants LVDENE: f TOV/PED As DE Et 13 D. DEFENDANTS’ EXHIBITS SUBJECT TO OBJECTIONS 14 L, Plaintiff's Movement History Report; 15 2, Plaintiff's Housing History Report; 16 2 Plaintiff's Grievance file, including all relevant grievances; 17 4, Certified Judgment(s) of Conviction of Plaintiff for underlying offense (only if needed 18 || for impeachment); 19 a: Plaintiff's Institutional File (“I-File’”); 20 6. Plaintiff's NDOC Central File (“C-File’’); 21 7. Law Library Logs; 22 8. Legal Mail Logs for relevant time period; 23 yy, Law Library Brass Slips; 24 10. Plaintiff's Case Notes as maintained on the NDOC NOTIS system from 2014 to Present. 25 11. All prison logs, registers, documents, or other form of data pertaining to any and all of 26 || Plaintiff's claims. 27 12. Plaintiff's relevant medical records and kites. 28 13. Emails relating to this issue.
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1. 14. Any and all other exhibits that may support the statements of fact and law cited herein 2 to rebut Plaintiff's statements, claims, and testimony. 3 15. Any and all other exhibits that rebut witnesses that might be called to respond to claims 4 || made by either Plaintiff or any of his proposed witnesses; 5 E. DEPOSITIONS 6 l. None. 7 || VIII. WITNESSES 8 A. PLAINTIFF’S WITNESSES: 9 Plaintiff wishes to reserve the right to call the following persons: 10 David Mar, M.D. (NNCC) (RMF) Marsha Johns, M.D. (NNCC) (RMF) 12 Ronald Santos, #46019 (NNCC) AMEWDEO 13 Any other treating physicians. JA. 7% ol Bien Pash Dn ik □ Disebater esl miso ) St Welf f SEMA EVE eramiah Parks ) Tohnw syvHor (Ss. Far □□□ 15 George Cooper 16 James McCallum 17 John Miller 18 Robert Spark 19 Country Joe Stevens 20 Jeffery Hosmer aL Richard Milborn 22 John Redman 23 Mitch Goodrum 24 Steven Ohlson 25 B. DEFENDANT’S WITNESSES: 26 Defendants wish to reserve the right to call the following persons: 27 1. Plaintiff Todd Evans, Inmate, Northern Nevada Correctional Center; 28 || ///
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1 2. Marsha Johns, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N. 2 Carson St. Carson City, Nevada 89701-4717. 3 3. David Mar, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N. 4 || Carson St. Carson City, Nevada 89701-4717. 5 4. Harold Wickham, Defendant, c/o Douglas R. Rands, Office of Attorney General, 100 N. 6 || Carson St. Carson City, Nevada 89701-4717. 5. Joseph Benson or medical director, c/o Douglas R. Rands, Office of Attorney General, 8 || 100 N. Carson St. Carson City, Nevada 89701-4717. 9 6. Theresa Wickham, Patty Smith or other Director of Nursing, c/o Douglas R. Rands, 10 || Office of Attorney General, 100 N. Carson St. Carson City, Nevada 89701-4717. 11 (7.) Evan’s outside medical providers, c/o Douglas R. Rands, Office of Attorney General, 12 || 100 N. Carson St. Carson City, Nevada 89701-4717. 13 8. Nethanjah Breitenbach, Warden, NNCC, c/o Douglas R. Rands, Office of Attorney 14 || General, 100 N. Carson St. Carson City, Nevada 89701-4717. 15 9. John Keast, Director of Nursing, NNCC, c/o Douglas R. Rands, Office of Attorney 16 || General, 100 N. Carson St. Carson City, Nevada 89701-4717. 17 10. Custodian(s) of Record for any exhibits identified above, c/o Douglas R. Rands, Office 18 || of the Attorney General, 100 N. Carson Street, Carson City, NV 89701-4717, and (775) 684-1100. 19 11. Any and all rebuttal witnesses that might be called to respond to claims made by either 20 || Plaintiff or any of his witnesses. 21 12. Any and all other witnesses that have personal knowledge supporting Defendant's 22 || statements of fact or law cited herein. 23 13. All witnesses identified by Plaintiff, whether or not called to testify at trial. 24 Plaintiff and Defendants reserve the right to interpose objections to the calling of any named 25 || witness listed above prior to or at trial. 26 ||TX. AVAILABLE TRIAL DATES 27 Plaintiff and Defendants’ Counsel expressly understand that the Clerk shall set the trial of this 28 || matter at the convenience of the Court's calendar. A jury has been requested.
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1 The following are three weeks in which both parties are available: 2 April 2, 2024 3 April 15, 2024 + April 29, 2024 5 DATED this 24th day of August, 2023. 6 AARON D. FORD Attorney General
8 = Z By: /s/ Douglas R. Rands odd Evans □□□ DOUGLAS R. RANDS, Bar No. 3572 9 Plainti, vpelaae” Senior Deputy Attorney General anil! Pag PriAl ONOEL ve 10 Attorneys for Defendants 11
13 14 15 16 It is ordered that Calendar Call is set for April 1, 2024, at 10:00 a.m. by video before Judge Robert C. Jones. a7 It is further ordered that Jury Trial is set for April 29, 2024, at 8:30 a.m. in Reno Courtroom 18 |! 3 before Judge Robert C. Jones. 19 Dated this 28th_ day of August 2023. 20 ROBERT C. JONE S. DISTRICT JUDGE 22 23 24 25 26
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