Franklin v. Hernandez

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JEFFREY LYNN FRANKLIN, Case No. 2:20-cv-00063-ART-DJA 5 Plaintiff, ORDER 6 v.

7 HERNANDEZ, et al.,

8 Defendants.

9 Plaintiff Jeffrey Lynn Franklin, proceeding pro se, brings this action under 10 42 U.S.C. § 1983 for deliberate indifference to serious medical needs relating to 11 Plaintiff’s requests to be placed on a lower bunk due to back pain, for a violation 12 of equal protection relating to not being classified as a community trustee, and 13 for a violation of equal protection relating to a delay of approximately one month 14 in Plaintiff’s release on parole. (ECF Nos. 3-1, 10.) Before the Court is Defendant 15 Diana Hernandez’s motion for summary judgment. (ECF No. 31.) For the reasons 16 set forth in this order, the Court grants Defendant Hernandez’s motion for 17 summary judgment and dismisses this case. 18 I. BACKGROUND 19 Plaintiff filed this action in forma pauperis on January 9, 2020 and filed an 20 amended complaint on January 23, 2020. (ECF Nos. 1, 3.) Plaintiff brought four 21 claims: (1) a claim for deliberate indifference to serious medical needs in violation 22 of the Eighth Amendment and the due process clause of the Fourteenth 23 Amendment; (2) a claim for denial of access to the courts in violation of the First 24 and Fourteenth Amendments; (3) a claim for violations of the due process and 25 equal protection clauses of the Fourteenth Amendment relating to his NDOC 26 classification; and (4) a claim for violations of the due process and equal 27 protection clauses of the Fourteenth Amendment relating to a delay in his release 28 1 on parole. (ECF No. 3-1.) Plaintiff named three defendants, all in their individual 2 and official capacities: (1) Hernandez, a caseworker at the Three Lakes Valley 3 Conservation Camp; (2) Jerry Howell, warden of Southern Desert Correctional 4 Center; and (3) Dressen, associate warden of Southern Desert Correctional 5 Center. (Id.) Plaintiff’s amended complaint was screened on September 23, 2020, 6 and the Court allowed Plaintiff’s Eighth Amendment deliberate indifference claim, 7 Fourteenth Amendment equal protection claim relating to classification, and 8 Fourteenth Amendment equal protection claim relating to his release on parole 9 to proceed against Defendant Hernandez. (ECF No. 10.) 10 For his deliberate indifference claim, Plaintiff alleges that he felt great pain 11 in his lower back and was seen at High Desert State Prison (“HSDP”) for this pain 12 in December of 2017 where he received a prescription for 800 milligram ibuprofen 13 pills and an order to receive a lower sleeping bunk. (ECF No. 3-1 at 4.) Plaintiff 14 was then transferred in February of 2018 to Three Lakes Valley Conservation 15 Camp (“TLVCC”), and in his initial interview with Defendant Hernandez, 16 Hernandez stated that she would not give Plaintiff a lower bunk and that Plaintiff 17 could return to HSDP if he desired a lower bunk. (Id.) Plaintiff’s back pain 18 allegedly worsened as Plaintiff was required to climb onto a higher bunk, and 19 Plaintiff allegedly submitted several medical kites and an emergency grievance 20 which led to Plaintiff being seen by a doctor who again assigned Plaintiff to a 21 lower bunk. (Id.) Defendant Hernandez allegedly nonetheless deliberately failed 22 to give Plaintiff a lower bunk and Plaintiff experienced pain for a year. (Id.) 23 For his equal protection claim relating to his NDOC classification, Plaintiff 24 alleges that his consideration by the Offender Management Division (“OMD”) for 25 a classification status as a community trustee was stayed after Defendant 26 Hernandez knowingly introduced false and misleading information into Plaintiff’s 27 file relating to a conviction for a crime of violence. (Id. at 6.) Under Administrative 28 Regulation 521.05, an inmate becomes ineligible for classification as a 1 community trustee if the inmate has a conviction for a felony involving the use of 2 threat of violence within the last three years. (Id.) Plaintiff explains that he was 3 convicted more than ten years ago for drug trafficking which was a non-violent 4 offense. (Id.) In the screening order, the Court held that Plaintiff stated a colorable 5 equal protection claim under a class-of-one theory based on the allegations that 6 other inmates with similar criminal background, i.e. those without a felony 7 involving violence within the last three years, were not targeted with fabricated 8 information during classification in the way that Plaintiff was targeted by 9 Defendant Hernandez. (ECF No. 10.) 10 For his equal protection claim relating to his release on parole, Plaintiff 11 alleges that he was granted parole with an effective date of January 1, 2020. (ECF 12 No. 3-1 at 8.) Plaintiff states that on January 2, 2020, Plaintiff communicated his 13 parole to Defendant Hernandez who then said that the January 1, 2020 date did 14 not mean anything to her and that she had locked in Plaintiff to a release date of 15 February 5, 2020. (Id.) In the screening order, the Court held that Plaintiff stated 16 a colorable equal protection claim based on the allegations that Defendant 17 Hernandez targeted Plaintiff by altering his release date for no valid reason where 18 other similarly situated individuals were not targeted. (ECF No. 10.) 19 Defendant Hernandez brought a motion for summary judgment on 20 September 27, 2021.1 (ECF No. 31.) Defendant Hernandez also sought to submit 21 Plaintiff’s medical records and filed a motion for leave to file under seal. (ECF No. 22 33.) As no opposition to the motion for leave to file under seal was submitted, and 23 for good cause shown, the Court grants the motion to file under seal. 24 \\\ 25 1 To date, Plaintiff has not filed a response to Defendant Hernandez’s motion for summary 26 judgment. Plaintiff last updated his address with the Court on April 8, 2021, approximately five months before the summary judgment motion was filed. (ECF No. 24.) In this update, Plaintiff 27 provided a non-custodial address. There is no indication that the summary judgment motion was returned in the mail as undeliverable. The Court nonetheless considers Defendant Hernandez’s 28 motion for summary judgment on the merits pursuant to Local Rule LR 7-2(d). 1 II. DISCUSSION 2 The purpose of summary judgment is to avoid unnecessary trials when 3 there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. 4 Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 5 appropriate when the pleadings, the discovery and disclosure materials on file, 6 and any affidavits “show that there is no genuine issue as to any material fact 7 and that the moving party is entitled to a judgment as a matter of law.” Celotex 8 Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a 9 sufficient evidentiary basis on which a reasonable fact-finder could find for the 10 nonmoving party and a dispute is “material” if it could affect the outcome of the 11 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 12 (1986). The moving party bears the burden of showing that there are no genuine 13 issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 14 1982). If the moving party satisfies Rule 56's requirements, the burden shifts to 15 the party resisting the motion to “set forth specific facts showing that there is a 16 genuine issue for trial.” Anderson, 477 U.S. at 256. 17 A. DELIBERATE INDIFFERENCE 18 To maintain a claim under the Eighth Amendment for deliberate 19 indifference to serious medical needs, a plaintiff must show: (1) a “serious medical 20 need” by demonstrating that failure to treat a prisoner's condition could result in 21 further significant injury or the unnecessary and wanton infliction of pain; and 22 (2) that the defendant’s response to the need was deliberately indifferent, which 23 can be demonstrated by showing a purposeful act or failure to respond to a 24 prisoner’s pain or possible medical need and harm caused by the indifference. 25 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The first element is an 26 objective standard requiring the plaintiff to show that the deprivation was serious 27 enough to amount to cruel and unusual punishment, and the second element is 28 a subjective standard requiring the plaintiff to show that the defendant acted with 1 deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A defendant 2 may only be liable under 42 U.S.C. § 1983 if the plaintiff shows personal 3 participation by the defendant. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 4 1989). 5 Defendant Hernandez argues that she is entitled to summary judgment 6 because she was not initially aware of Plaintiff’s back condition, at no time did 7 his medical records show that Plaintiff was ordered a lower bunk, and even after 8 she became aware of his request for a lower bunk, she lacked the authority, as 9 non-medical staff, to order such a change. (ECF No. 31.) According to Defendant 10 Hernandez, when Plaintiff first transferred to TLVCC, Plaintiff did not inform her 11 of any medical concerns, and none were indicated in his medical records, (ECF 12 No. 31-6 at 12, note dated 02/08/2018 – 11:43), and there was no lower bunk 13 order for Plaintiff, (ECF No. 34-1 at 5, 17). Although Plaintiff’s medical records, 14 filed under seal (ECF No. 34-1), clearly confirm he complained of back pain, 15 Defendant Hernandez asserts that NDOC custody staff such as herself do not 16 make the determination of whether a lower bunk for an inmate is medically 17 necessary. (ECF No. 31 at 9.) Although Plaintiff submitted a medical kite 18 complaining of back pain and requesting a lower bunk after he arrived at TLVCC, 19 (ECF No. 34-1 at 12), a medical staff member noted in response, “Checked file 20 and do not see an order for lower bunk.” (Id.) 21 The uncontested evidence proffered in this case shows that even after 22 Defendant Hernandez became aware that Plaintiff had submitted medical kites 23 complaining about his back pain, there was no medical order assigning Plaintiff 24 to a lower bunk and Defendant Hernandez, as non-medical staff, lacked the 25 authority to order it. See D'Amico v. Bannister, WL 684786, at *8 (D. Nev. 2013), 26 report and recommendation adopted, 2013 WL 685211 (D. Nev. 2013), aff'd, 558 27 F. App'x 739 (9th Cir. 2014) (citing Taylor, 880 F.2d at 1045) (granting summary 28 judgment for a deliberate indifference claim on the basis that the defendant was 1 a caseworker and not medical staff). Because Defendant Hernandez lacked 2 authority to order Plaintiff a lower bunk, Defendant Hernandez’s inaction cannot 3 have been due to deliberate indifference and therefore Plaintiff’s claim fails to 4 meet the subjective prong of the deliberate indifference standard. Because there 5 is no genuine issue of material fact as to whether Defendant Hernandez’s inaction 6 constitutes deliberate indifference, Defendant Hernandez’s motion for summary 7 judgment on Plaintiff’s Eighth Amendment claim is granted. 8 B. EQUAL PROTECTION: INMATE CLASSIFICATION 9 An equal protection claim under a class-of-one theory requires a plaintiff 10 to demonstrate that the defendant purposefully treated them differently than 11 similarly situated individuals without any rational basis for the disparate 12 treatment. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). The 13 screening order allowed Plaintiff’s class-of-one equal protection claim to proceed 14 because malicious and vindictive falsification of Plaintiff’s records by Defendant 15 Hernandez would not be rationally related to any legitimate NDOC policy or 16 practice. (ECF No. 10.) Defendant Hernandez argues that she is entitled to 17 summary judgment she lacked the authority to grant Plaintiff his desired 18 classification and did not personally participate in the decision. (ECF No. 31 at 19 11.) Defendant Hernandez also points to the fact that the information Plaintiff 20 complains about was present in his Pre-Sentence Investigation Report dated 21 October 27, 2006, which would have been in his file before Defendant Hernandez 22 became Plaintiff’s caseworker, thus making it impossible for her to have 23 maliciously and falsely introduced that information. (Id. at 11-12.) 24 The Court agrees with Defendant Hernandez. The evidence submitted in 25 this case does not create a genuine issue of material fact as to whether Defendant 26 Hernandez had any authority over or personal involvement in Plaintiff’s 27 classification. See Taylor, 880 F.2d at 1045. Defendant Hernandez states that 28 this determination is made by the Offender Management Division, not by her, 1 and Plaintiff has not proffered any evidence to the contrary. (ECF No. 31 at 11.) 2 It is also not possible that Defendant Hernandez was personally responsible for 3 introducing the information present in Plaintiff’s 2006 Pre-Sentence Investigation 4 Report into Plaintiff’s file. Defendant Hernandez’s motion for summary judgment 5 on Plaintiff’s equal protection claim relating to Plaintiff’s inmate classification is 6 granted. 7 C. EQUAL PROTECTION: RELEASE ON PAROLE 8 Plaintiff alleges that Defendant Hernandez violated Plaintiff’s equal 9 protection rights under a class-of-one theory when she willfully ignored Plaintiff’s 10 January 1, 2020, effective parole date and stated that she personally “locked” 11 Plaintiff’s parole date to be February 5, 2020. (ECF No. 3 at 8.) Defendant 12 Hernandez argues that she is entitled to summary judgment on this claim 13 because the State Board of Parole Commissioners, not Defendant Hernandez or 14 NDOC, determined Plaintiff’s parole date and because the Nevada Division of 15 Parole and Probation of the Department of Public Safety (“Parole and Probation”) 16 set a parole release date of February 5, 2020. (ECF No. 31; see Taylor, 880 F.2d 17 at 1045.) The documents submitted by Plaintiff and Defendant Hernandez show 18 that there is no genuine issue of material fact as to whether Defendant Hernandez 19 was personally involved in deciding the date that Plaintiff was released on parole. 20 Plaintiff submitted with his amended complaint an Order Granting Parole from 21 the State Board of Parole Commissioners which states that parole was granted 22 on October 14, 2019 with an effective date of January 1, 2020. (ECF No. 3-1 at 23 13.) Plaintiff’s October 14, 2019 request regarding his release date was addressed 24 to caseworker Childers, who responded that she submitted his request to 25 Anderson at Parole and Probation. (ECF No. 3-1 at 15.) Plaintiff’s subsequent 26 requests on December 2, 2019, and January 2, 2020, were addressed to 27 Anderson at Parole and Probation, not Defendant Hernandez. (Id. at 16-17.) None 28 of these documents show any involvement from Defendant Hernandez. There is 1 || no evidence to create a genuine issue of material fact as to Defendant Hernandez’s 2 || involvement. Defendant Hernandez’s motion for summary judgment on □□□□□□□□□□ 3 || equal protection claim relating to his release on parole is granted. III. CONCLUSION 5 It is therefore ordered that Defendant Hernandez’s motion for summary 6 || judgment (ECF No. 31) is granted. 7 It is further ordered that this case be dismissed. 8 9 DATED THIS 6th day of December 2022. 10 11 A, rs plod den 12 ANNE R. TRAUM 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28