Gardner v. Naphcare, Inc.

Opinion

3 * * *

4 PAUL GARDNER, Case No. 3:24-CV-00277-MMD-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 8] 7 NAPHCARE, INC., et al.,

8 Defendants.

9 10 This case involves a civil rights action filed by Plaintiff Paul Gardner (“Gardner”) 11 against several Defendants. Currently pending before the Court is Defendant Naphcare, 12 Inc.’s (“Naphcare”) motion to dismiss. (ECF No. 8.) Gardner responded, (ECF No. 13), 13 and Naphcare replied. (ECF No. 14.) For the reasons stated below, the Court 14 recommends that Naphcare’s motion to dismiss, (ECF No. 8), be granted in part and 15 denied in part. 17 On June 30, 2024, Gardner initiated this action for events that occurred while he 18 was an inmate in the custody of the Washoe County Detention Facility (“WCDF”). (ECF 19 No. 1.) Gardner brings this action against defendants Naphcare, Michael Trebian 20 (“Trebian”), Michael Tover (“Tover”), Michael Buehler (“Buehler”),2 Frank Akpati 21 (“Akpati”), Larry Williamson, M.D. (“Dr. Williamson”), and Washoe County (“County”). (Id. 22 at ¶ 2-9.) 23 /// 24

25 1 This Report and Recommendation is made to the Honorable Miranda M. Du, 26 United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. 27 2 Gardner refers to Trebian, Tover, and Buehler collectively as “Nurse Michael Doe” as the true identity of the individual responsible for the conduct alleged in the complaint 1 Gardner’s complaint alleges the following: On July 1, 2022, Gardner was an inmate 2 at the WCDF. (Id. at ¶ 20.) Gardner wore scleral contact lenses. (Id. at ¶ 21.) NaphCare 3 contracted with Washoe County to provide medical services to inmates at the WCDF. (Id. 4 at ¶ 22.) NaphCare medical providers at the jail determined Gardner needed contact 5 solution once per day in the evening for use with his scleral contact lenses. (Id. at ¶¶ 24, 6 26.) NaphCare medical providers ordered nursing staff (Nurse Michael Doe) to distribute 7 Gardner’s “nightly supply of solution for application of the special lenses as indicated in 8 his chart.” (Id. at ¶¶ 26-28.) Nurse Michael Doe administered hydrogen peroxide rather 9 than saline solution. (Id. at ¶ 29.) The hydrogen peroxide was intended for another inmate. 10 (Id. at ¶ 30.) Gardner applied the hydrogen peroxide to his contact lens resulting in injuries 11 including burning, worsened vision problems, photophobia, headaches, dizziness, and 12 frequent infections. (Id. at ¶¶ 33-38.) 13 Three days after the incident, Gardner was examined by a nurse in the infirmary. 14 (Id. at ¶ 40.) Gardner claims NaphCare denied his request to provide him with an 15 eyepatch and Washoe County denied him use of new scleral lenses. (Id. at ¶¶ 43-46.) 16 Gardner made repeated requests for an eye examination. (Id. at ¶ 105.) On August 16, 17 2022, Frank Akpati, a nurse practitioner, noted in Gardner’s chart that his pre-incident 18 diagnosis was basically astigmatism. (Id. at ¶ 106.) Gardner contends Mr. Akpati’s 19 assessment was “essentially irrelevant.” (Id. at ¶ 107.) However, Mr. Akpati’s note caused 20 Dr. Larry Williamson not to appreciate the severity of Gardner’s medical need. (Id. at ¶ 21 109.) 22 Gardner saw Dr. Larry Williamson on January 7, 2023. (Id. at ¶¶ 48, 115-116.) Dr. 23 Williamson was not aware of the hydrogen peroxide incident and was not a specialist in 24 scleral lenses. (Id. at ¶¶ 49-50.) Dr. Williamson referred plaintiff to an optometrist who 25 specializes in scleral contact lenses for an examination. (Id. at ¶¶ 49,117.) Six months 26 later, Plaintiff was seen by a specialist. (Id. at ¶ 52.) Gardener claims the specialist 27 indicated earlier treatment would have prevented his visual acuity from worsening. (Id. at 1 Based on these allegations, Gardner asserts five claims: (1) general negligence 2 against Defendants Tover, Trebian, and Buehler (aka Nurse Michael Doe), Naphcare, 3 and Does; (2) negligent hiring, training, supervision, and retention against Naphcare and 4 Does; (3) professional negligence against Defendants Tover, Trebian, and Buehler (aka 5 Nurse Michael Doe), Naphcare, and Does; (4) inadequate medical care and cruel and 6 unusual punishment in violation of the Eighth Amendment and Article I Section 6 of the 7 Nevada Constitution against Defendants County, Naphcare, and Does; and (5) disability 8 discrimination in violation of Title II of the Americans with Disabilities Act (“ADA”) against 9 Defendants County and Naphcare. (Id.) Gardner seeks monetary relief. (Id. at 20.) 10 Defendant Naphcare filed the instant motion to dismiss arguing: (1) Gardner’s 11 claims sound in professional negligence and are therefore barred by the one-year 12 limitation of NRS 41A.097(2); (2) the alleged facts do not support a Monell claim against 13 Naphcare; (3) the complaint fails to state sufficient facts of deliberate indifference to 14 serious medical needs against Dr. Williamson or Akpati; and (4) Naphcare, a private 15 entity, is not subject to claims under the ADA. (ECF No. 8.) 17 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 18 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 19 A complaint challenged “by a Rule 12(b)(6) motion to dismiss does not need detailed 20 factual allegations” but requires plaintiff to provide actual grounds for relief. Bell Atlantic 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007). Generally, a motion to dismiss pursuant to 22 Rule 12(b)(6) tests the “legal sufficiency of the claim.” Conservation Force v. Salazar, 646 23 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 2001)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations 25 must be accepted as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “view[ed] . . . 26 in the light most favorable to the” nonmoving party. Lemmon v. Snap, Inc., 995 F.3d 1085, 27 1087 (9th Cir. 2021). 1 The Ninth Circuit has found that two principles apply when deciding whether a 2 complaint states a claim that can survive a 12(b)(6) motion. First, to be entitled to the 3 presumption of truth, the allegations in the complaint “may not simply recite the elements 4 of a cause of action, but must contain sufficient allegations of underlying facts to give fair 5 notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 6 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant 7 to be subjected to the expenses associated with discovery and continued litigation, the 8 factual allegations of the complaint, which are taken as true, “must plausibly suggest an 9 entitlement to relief.” Id. (emphasis added). 10 Dismissal is proper only where there is no cognizable legal theory or an “absence 11 of sufficient facts alleged to support a cognizable legal theory.” Davidson v. Kimberly- 12 Clark Corp., 889 F.3d 956, 965 (9th Cir. 2018) (quoting Navarro, 250 F.3d at 732). 13 Additionally, the court takes particular care when reviewing the pleadings of a pro se 14 party, because a less stringent standard applies to litigants not represented by counsel. 15 Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016). 17 Defendant Naphcare files the instant motion to dismiss arguing the complaint 18 should be dismissed against Naphcare, and each of the other named medical providers 19 and nurses3, for failure to state a claim upon which relief may be granted. Naphcare 20 argues that this action is premised on professional negligence and was commenced 21 beyond the applicable one-year statute of limitations pursuant to NRS 41A.097. Further, 22 Naphcare argues Gardner has failed to state facts sufficient to support a cause of action 23 for municipality liability/deliberate indifference to serious medical needs. Finally, 24

25 3 The Court notes that Naphcare makes various arguments on behalf of the other 26 named medical providers and nurses—i.e., Nurse Michael Doe, Dr. Williamson, and Akpati—however, none of these defendants has been served. Thus, the Court does not find it appropriate to hear argument from Defendant Naphcare on behalf of these 27 unserved Defendants unless and until Defendant Naphcare’s attorneys file a Notice of Appearance on behalf of such defendants. As such, the Court will only address the 1 Naphcare argues that Title II of the ADA only applies to public entities, not private entities 2 or individuals such as NaphCare or its employees. Thus, Naphcare argues the matter 3 must be dismissed for a failure to state a claim upon which relief can be granted. (ECF 4 No. 8.) The Court will discuss each argument in turn. 5 A. General Negligence Claim 6 Naphcare first argues that Gardner’s claims sound in professional negligence, as 7 opposed to general negligence, and therefore Gardner’s claim for general negligence 8 should be dismissed. (ECF No. 8 at 10-12.) Gardner does not address or otherwise 9 oppose this argument. (See ECF No. 13.) Under Nevada law, the sole inquiry as to 10 whether a claim sounds in ordinary negligence or professional negligence (medical 11 malpractice) is “whether the claim involves a provider of healthcare rendering services in 12 a way that causes injury....” Limprasert v. PAM Specialty Hosp. of Las Vegas LLC, 140 13 Nev. Adv. Op. 45, 550 P.3d 825, 831 (2024). Based on Nevada law, and based on 14 Gardner’s apparent non-opposition, the Court recommends that Gardner’s general 15 negligence claim be dismissed. 16 B. Professional Negligence and Negligent Hiring Claims 17 Next, Naphcare argues that Gardner’s claims for Professional Negligence and for 18 Negligent Hiring, Training, Supervision, and Retention are time-barred by the one-year 19 statute of limitations provide by NRS 41A.097(2). (ECF No. 8 at 10-12.) While Gardner 20 acknowledges that he did not timely file his complaint, he argues the statute of limitations 21 should be tolled because Naphcare intentionally withheld Gardner’s medical records from 22 him, delaying his ability to discern the appropriate identity of the Naphcare employee who 23 caused his injury. (ECF No. 13 at 2, 4-8; ECF No. 1 at ¶ 60.) 24 NRS 41A.097(2) governs the limitations periods for professional negligence 25 claims, stating in relevant part that “an action for injury or death against a provider of 26 health care may not be commenced more than 3 years after the date of the injury or 1 27 year after the plaintiff discovers or through use of reasonable diligence should have 1 hiring, training, and supervision are subject to the requirements of NRS 41A when the 2 underlying tortfeasor employee’s negligence constitutes professional negligence. 3 Yafchak v. S. Las Vegas Med. Invs., LLC, 519 P.3d 37, 40. 4 The accrual date for NRS 41A.097(2)’s one-year limitations period is generally a 5 question of fact that must be decided by a jury; however, courts may determine the date 6 as a matter of law when the evidence irrefutably shows the plaintiff was placed on inquiry 7 notice of a potential claim. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 251-52, 277 8 P.3d 458, 462 (2012). “A plaintiff discovers [their] injury when [they] know[ ] or, through 9 the use of reasonable diligence, should have known of facts that would put a reasonable 10 person on inquiry notice of [their] cause of action.” Id. at 252, 277 P.3d at 462 (quoting 11 Massey v. Litton, 99 Nev. 723, 728, 669 P.2d 248, 252 (1983)) (internal citation omitted). 12 “[T]hese facts need not pertain to precise legal theories the plaintiff may ultimately pursue, 13 but merely to the plaintiff’s general belief that someone’s negligence may have caused 14 his or her injury.” Winn, 128 Nev. at 252-53, 277 P.3d at 462. “The discovery may be 15 either actual or presumptive, but must be of both the fact of damage suffered and the 16 realization that the cause was the health care provider’s negligence.” Massey, 99 Nev. at 17 727, 669 P.2d at 251. 18 Pursuant to NRS 41A.097(4), however, the “time limitation is tolled for any period 19 during which the provider of health care has concealed any act, error or omission upon 20 which the action is based and which is known or through the use of reasonable diligence 21 should have been known to the provider of health care.” Thus, a plaintiff seeking to toll 22 subsection 2's one-year discovery period must show an intentional concealment and 23 “establish that he or she satisfied subsection 2's standard of ‘reasonable diligence.’” Winn, 24 128 Nev. at 255, 277 P.3d at 464. In short, to establish tolling based on concealment, 25 Gardner must show that (1) the provider “intentionally withheld information,” and (2) “that 26 this withholding would have hindered a reasonably diligent plaintiff from procuring an 27 expert affidavit.” Kushnir v. Eighth Jud. Dist. Ct., 137 Nev. 409, 410, 495 P.3d 137, 139 1 Here, as Gardner concedes in his complaint and his response to the motion to 2 dismiss, the very nature of his injury—a chemical burn to his eye—would have put a 3 reasonable person on inquiry notice of his possible cause of action on the date the injury 4 occurred—July 1, 2022. Gardner argues, however, that the statute of limitations should 5 be tolled based on his allegations that Naphcare withheld his medical records until after 6 his release from custody, which prevented him from properly identifying the Naphcare 7 employee responsible for his injury. (ECF No. 13 at 2, 4-8.) 8 In order to toll the statute of limitations, Gardner must demonstrate that the alleged 9 concealment would have hindered a reasonably diligent plaintiff from discovering their 10 cause of action. However, Gardner’s complaint and opposition to the motion to dismiss 11 does not establish how the alleged concealment of his medical records hindered his ability 12 to file a professional negligence action. Gardner’s argument that he needed his medical 13 records to identify the appropriate identity of the Naphcare employee who gave him 14 hydrogen peroxide instead of saline solution, does not address that he was aware of the 15 injury and/or cause of action for which he would file suit on the date he suffered his injury. 16 See Winn, 128 Nev. at 252, 277 P.3d at 462; See Kushnir, 137 Nev. at 412-13, 495 P.3d 17 at 141. Gardner merely argues the withheld medical records prevented him from 18 identifying the proper defendants. However, ignorance of the defendant’s identity will not 19 delay accrual of a cause of action under the discovery rule if the plaintiff fails to use 20 reasonable diligence in discovering the defendant’s role. Siragusa v. Brown, 114 Nev. 21 1384, 1394, 971 P.2d 801, 807-08 (1998). 22 Thus, the Court finds that the statute of limitations began to run on the date 23 Gardner was given the incorrect solution for his contact lenses on July 1, 2022 and 24 because Gardner does not demonstrate that the allegedly withheld records “hindered a 25 reasonably diligent plaintiff from procuring an expert affidavit,” tolling is not warranted. 26 See Kushnir, 137 Nev. at 410, 495 P.3d at 139. Accordingly, the Court recommends that 27 the professional negligence and negligent hiring claims be dismissed as untimely. 1 C. Inadequate Care and Cruel and Unusual Punishment – Municipal Liability Claim 2 3 Next, Naphcare argues that Gardner’s municipal liability claim fails as the 4 complaint does not allege a delay in medical care due to a policy or custom of Naphcare. 5 (ECF No. 8 at 12-16.) 6 A municipality may be found liable under 42 U.S.C. § 1983 only where the 7 municipality itself causes the violation at issue. City of Canton, Ohio v. Harris, 489 U.S. 8 378, 385 (1989) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658 9 (1978)). As explained by the Ninth Circuit, a litigant may recover from a municipality under 10 § 1983 on one of three theories of municipal liability. Clouthier v. Cnty. of Contra Costa, 11 591 F.3d 1232, 1249 (9th Cir. 2010). “First, a local government may be held liable ‘when 12 implementation of its official policies or established customs inflicts the constitutional 13 injury.” Id. (quoting Monell, 436 U.S. at 708 (Powell, J. concurring)). “Second, under 14 certain circumstances, a local government may be held liable under § 1983 for acts of 15 omission, when such omissions amount to the local government’s own official policy.” Id. 16 “Third, a local government may be held liable under § 1983 when ‘the individual who 17 committed the constitutional tort was an official with final policy-making authority’ or such 18 an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’” 19 Id. at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342 1346-47 (9th Cir. 1992)). “Official 20 municipal policy includes the decisions of a government’s lawmakers, the acts of its 21 policymaking officials, and practices so persistent and widespread as to practically have 22 the force of law.” See Connick v. Thompson, 563 U.S. 51, 61 (2011). Municipalities are 23 not vicariously liable under § 1983 for their employees' actions. Id. at 60. 24 Gardner’s complaint specifically alleges that Naphcare’s “policy or custom was to 25 prohibit inmates from receiving medical equipment or modalities like new contact lens 26 prescriptions and eye patches based on how severely their employees believed it was 27 necessary, and/or due to apathy, and/or without considering objective factors that 1 colorable municipality liability claim against Naphcare. See Monell, 436 U.S. at 708 (a 2 local government may be held liable when implementation of its official policies or 3 established customs inflicts the constitutional injury.) Accordingly, Naphcare’s motion to 4 dismiss, should be denied with respect to the municipality liability claim. 5 D. Disability Discrimination in Violation of the ADA 6 As to the ADA claim, Naphcare argues that because Naphcare is a private entity, 7 it is not subject to claims under the ADA and therefore the disability discrimination claim 8 should be dismissed. (ECF No. 8 at 18-19.) 9 Title II of the ADA applies to prisons and incarcerated persons. Pennsylvania Dept. 10 of Corrections v. Yeskey, 524 U.S. 206 (1998). The proper defendant in a Title II claim 11 is the public entity responsible for the alleged discrimination. United States v. Georgia, 12 546 U.S. 151, 153-54 (2006). “The ADA broadly “defines ‘public entity’ as ‘any State or 13 local government [and] any department, agency, special purpose district, or other 14 instrumentality of a State or States or local government.’” Armstrong v. Wilson, 124 F.3d 15 1019, 1023 (9th Cir.1997) (quoting 42 U.S.C. § 12131(1)). Naphcare contracts with the 16 County to provide medical services to inmates and is therefore an instrumentality of 17 Washoe County and a public entity for purposes of the ADA. Accordingly, the Court 18 recommends that Gardner’s disability discrimination claim against Naphcare proceed. 19 E. Dismissal of Defendants Michael Buehler and Michael Tover 20 Finally, in response to the motion to dismiss, Gardner states he has confirmed the 21 identity of “Nurse Michael Doe” as Michael Trebian and therefore agree to dismiss 22 Defendants Michael Buehler and Michael Tover. (ECF No. 13 at 6, n. 3.) Accordingly, the 23 Court recommends that Defendants Michael Buehler and Michael Tover be dismissed 24 from this action. 26 For the reasons stated above, the Court recommends that Naphcare’s motion to 27 dismiss, (ECF No. 8), be granted in part and denied in part. 1 The parties are advised: 2 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 3| Practice, the parties may file specific written objections to this Report and 4 |) Recommendation within fourteen days of receipt. These objections should be entitled 5 | “Objections to Magistrate Judge’s Report and Recommendation” and should be 6 | accompanied by points and authorities for consideration by the District Court. 7 2. This Report and Recommendation is not an appealable order and any 8 | notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court’s judgment. 10| V. RECOMMENDATION 11 IT IS THEREFORE RECOMMENDED that Naphcare’s motion to dismiss, (ECF No. 8), be granted in part and denied in part, specifically that: 13 e The motion be granted, such that Gardner's claims for (1) General 14 Negligence (First Cause of Action), (2) Negligent Hiring, Training, 15 Supervision, and Retention (Second Cause of Action), and (3) Professional 16 Negligence (Third Cause of Action) be DISMISSED, WITH PREJUDICE. 17 e The motion be denied, such that Gardner’s claim for (1) municipality liability 18 (Fourth Cause of Action), and (2) Disability Discrimination in violation of the 19 ADA (Fifth Cause of Action), PROCEED. 20 IT IS FURTHER RECOMMENDED that Defendants Michael Buehler and Michael 21 Tover be dismissed from this action. 22 DATED: October 4, 2024 23 . 24 25 UNITED STATES\MAGISTRATE JUDGE 26 27 28 4n)