1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 INGINIO HERNANDEZ, Case No. 3:16-cv-00606-MMD-CBC
7 Plaintiff, ORDER v. 8 ROMEO ARANAS, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Inginio Hernandez sued medical personnel and officials at Ely State Prison 13 (“ESP”) under 42 U.S.C. § 1983, alleging they were deliberately indifferent to his serious 14 medical needs in violation of the Eighth Amendment’s prohibition on cruel and unusual 15 punishment because of the way they treated his complaints of pain in his back, neck, and 16 finger. (ECF No. 7 at 3-5, 6-7.) Before the Court is the Report and Recommendation of 17 United States Magistrate Judge Carla B. Carry (ECF No. 91) (“R&R” or 18 “Recommendation”) regarding Defendants’ motion for summary judgment (“Motion”) (ECF 19 No. 59).1 Plaintiff filed an objection (ECF No. 92),2 and Defendants responded (ECF No. 20 94). The R&R recommends granting Defendant’s Motion. (ECF No. 91 at 9.) Following a 21 de novo review of the R&R, the Motion, and related briefing and exhibits, the Court agrees 22 23 1The Court has reviewed the response (ECF No. 85) and reply (ECF No. 87) related 24 to Defendant’s Motion.
25 2Plaintiff filed two motions, one styled as an objection and the other as a motion for reconsideration. (ECF Nos. 92, 93.) Having reviewed their contents, the Court construes 26 the two documents as a single objection to the R&R. The Court also notes that Plaintiff filed a reply in support of his objection (ECF No. 95), without first seeking the Court’s leave. 27 But “[r]eplies will be allowed only with leave of court.” LR IB 3-2(a). Moreover, the issues raised in the Motion and Plaintiff’s objection have been thoroughly briefed. The Court has 28 therefore not considered Plaintiff’s reply, and will direct the Clerk of Court to strike it from 1 with Judge Carry’s analysis, and will therefore accept and adopt the R&R in full, and 2 overrule Plaintiff’s objection. 3 II. REPORT AND RECOMMENDATION (ECF NO. 91) 4 Judge Carry recommends granting Defendant’s Motion on the grounds that: (1) she 5 could not conclude that the treatment choices Defendants made regarding Plaintiff’s pain 6 in his back and shoulders were medically unacceptable or made in conscious disregard of 7 an excessive risk to Plaintiff’s health; and (2) Plaintiff’s injury to his little finger did not rise 8 to the level of an objectively significant medical need requiring treatment to avoid serious 9 further injury. (ECF No. 91 at 8, 9.) 10 A. Legal Standards 11 1. Review of Magistrate Judge’s Report and Recommendation 12 This Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 14 timely objects3 to a magistrate judge’s report and recommendation, then the Court is 15 required to “make a de novo determination of those portions of the [report and 16 recommendation] to which objection is made.” Id. In light of Plaintiff’s objection, the Court 17 will engage in a de novo review to determine whether to adopt Magistrate Judge Carry’s 18 R&R. 19 2. Summary Judgment 20 “The purpose of summary judgment is to avoid unnecessary trials when there is no 21 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 22 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 23
24 3Defendants argue the Court should not consider Plaintiff’s objection because it was untimely filed. (ECF No. 94 at 3.) Defendants are correct that the more substantive of 25 the two documents Plaintiff filed as his objection (ECF No. 93) was untimely filed, but the other document was timely filed (ECF No. 92). See LR IB 3-2(a) (providing objections must 26 be filed within 14 days after the R&R was served). Because one of the documents was timely filed, and because of the public policy favoring the disposition of cases on their 27 merits that “is particularly important in civil rights cases[,]” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citation omitted), the Court will consider the merits of 28 1 the discovery and disclosure materials on file, and any affidavits “show there is no genuine 2 issue as to any material fact and that the movant is entitled to judgment as a matter of 3 law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is 4 a sufficient evidentiary basis on which a reasonable fact-finder could find for the 5 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 6 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 7 reasonable minds could differ on the material facts at issue, however, summary judgment 8 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 9 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 10 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 11 Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In 12 evaluating a summary judgment motion, a court views all facts and draws all inferences in 13 the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & 14 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 15 The moving party bears the burden of showing that there are no genuine issues of 16 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 17 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 18 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 19 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 20 but must produce specific evidence, through affidavits or admissible discovery material, to 21 show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 22 1991), and “must do more than simply show that there is some metaphysical doubt as to 23 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 24 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 25 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 26 Anderson, 477 U.S. at 252. 27 /// 28 /// 1 B. Discussion 2 Plaintiff generally objects to Judge Carry’s Recommendation that summary 3 judgment be granted in Defendants’ favor because Defendants did not respond 4 reasonably to Plaintiff’s ongoing pain and suffering. (ECF No. 93 at 3.) Plaintiff further 5 repeats his argument from the underlying briefing that Defendants did not offer him 6 treatments that would eliminate the causes of his pain rather than just treating the pain. 7 (Id.
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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 INGINIO HERNANDEZ, Case No. 3:16-cv-00606-MMD-CBC
7 Plaintiff, ORDER v. 8 ROMEO ARANAS, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Inginio Hernandez sued medical personnel and officials at Ely State Prison 13 (“ESP”) under 42 U.S.C. § 1983, alleging they were deliberately indifferent to his serious 14 medical needs in violation of the Eighth Amendment’s prohibition on cruel and unusual 15 punishment because of the way they treated his complaints of pain in his back, neck, and 16 finger. (ECF No. 7 at 3-5, 6-7.) Before the Court is the Report and Recommendation of 17 United States Magistrate Judge Carla B. Carry (ECF No. 91) (“R&R” or 18 “Recommendation”) regarding Defendants’ motion for summary judgment (“Motion”) (ECF 19 No. 59).1 Plaintiff filed an objection (ECF No. 92),2 and Defendants responded (ECF No. 20 94). The R&R recommends granting Defendant’s Motion. (ECF No. 91 at 9.) Following a 21 de novo review of the R&R, the Motion, and related briefing and exhibits, the Court agrees 22 23 1The Court has reviewed the response (ECF No. 85) and reply (ECF No. 87) related 24 to Defendant’s Motion.
25 2Plaintiff filed two motions, one styled as an objection and the other as a motion for reconsideration. (ECF Nos. 92, 93.) Having reviewed their contents, the Court construes 26 the two documents as a single objection to the R&R. The Court also notes that Plaintiff filed a reply in support of his objection (ECF No. 95), without first seeking the Court’s leave. 27 But “[r]eplies will be allowed only with leave of court.” LR IB 3-2(a). Moreover, the issues raised in the Motion and Plaintiff’s objection have been thoroughly briefed. The Court has 28 therefore not considered Plaintiff’s reply, and will direct the Clerk of Court to strike it from 1 with Judge Carry’s analysis, and will therefore accept and adopt the R&R in full, and 2 overrule Plaintiff’s objection. 3 II. REPORT AND RECOMMENDATION (ECF NO. 91) 4 Judge Carry recommends granting Defendant’s Motion on the grounds that: (1) she 5 could not conclude that the treatment choices Defendants made regarding Plaintiff’s pain 6 in his back and shoulders were medically unacceptable or made in conscious disregard of 7 an excessive risk to Plaintiff’s health; and (2) Plaintiff’s injury to his little finger did not rise 8 to the level of an objectively significant medical need requiring treatment to avoid serious 9 further injury. (ECF No. 91 at 8, 9.) 10 A. Legal Standards 11 1. Review of Magistrate Judge’s Report and Recommendation 12 This Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 14 timely objects3 to a magistrate judge’s report and recommendation, then the Court is 15 required to “make a de novo determination of those portions of the [report and 16 recommendation] to which objection is made.” Id. In light of Plaintiff’s objection, the Court 17 will engage in a de novo review to determine whether to adopt Magistrate Judge Carry’s 18 R&R. 19 2. Summary Judgment 20 “The purpose of summary judgment is to avoid unnecessary trials when there is no 21 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 22 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 23
24 3Defendants argue the Court should not consider Plaintiff’s objection because it was untimely filed. (ECF No. 94 at 3.) Defendants are correct that the more substantive of 25 the two documents Plaintiff filed as his objection (ECF No. 93) was untimely filed, but the other document was timely filed (ECF No. 92). See LR IB 3-2(a) (providing objections must 26 be filed within 14 days after the R&R was served). Because one of the documents was timely filed, and because of the public policy favoring the disposition of cases on their 27 merits that “is particularly important in civil rights cases[,]” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citation omitted), the Court will consider the merits of 28 1 the discovery and disclosure materials on file, and any affidavits “show there is no genuine 2 issue as to any material fact and that the movant is entitled to judgment as a matter of 3 law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is 4 a sufficient evidentiary basis on which a reasonable fact-finder could find for the 5 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 6 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 7 reasonable minds could differ on the material facts at issue, however, summary judgment 8 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 9 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 10 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 11 Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In 12 evaluating a summary judgment motion, a court views all facts and draws all inferences in 13 the light most favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & 14 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 15 The moving party bears the burden of showing that there are no genuine issues of 16 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 17 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 18 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 19 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 20 but must produce specific evidence, through affidavits or admissible discovery material, to 21 show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 22 1991), and “must do more than simply show that there is some metaphysical doubt as to 23 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 24 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 25 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 26 Anderson, 477 U.S. at 252. 27 /// 28 /// 1 B. Discussion 2 Plaintiff generally objects to Judge Carry’s Recommendation that summary 3 judgment be granted in Defendants’ favor because Defendants did not respond 4 reasonably to Plaintiff’s ongoing pain and suffering. (ECF No. 93 at 3.) Plaintiff further 5 repeats his argument from the underlying briefing that Defendants did not offer him 6 treatments that would eliminate the causes of his pain rather than just treating the pain. 7 (Id. at 10.) He also argues that Defendants should have inquired further to determine the 8 sources of his pain, pointing out that other courts have found deliberate indifference when 9 doctors either did not investigate complaints of pain or declined to perform tests suggested 10 by symptoms that would have led a doctor to find the cause of those symptoms. (Id. at 11- 11 14.) 12 Defendants counter that Plaintiff’s objection to the R&R should be overruled 13 because they “supported their MSJ with evidence showing (1) NDOC [Nevada Department 14 of Corrections] physicians determined in 2012 that Plaintiff was malingering back and 15 shoulder pain, and (2) NDOC medical staff determined Plaintiff’s pinky finger was not 16 injured.” (ECF No. 94 at 3.) They further argue that Plaintiff was examined 85 times, and 17 treated, for his back and shoulder pain between 2011 and 2017. Defendants also argue 18 that Plaintiff presented no evidence to support his claim that he injured his pinky finger, or 19 that Defendants’ advice to rest that finger was medically unacceptable. (Id.) 20 The Court largely agrees with Defendants. Regardless of whether Plaintiff was 21 malingering, Defendants proffered sufficient evidence to establish that Plaintiff’s 22 complaints about the medical care he received with respect to his back and shoulder pain 23 constitute, at best, a difference of opinion between Plaintiff and Defendants insufficient to 24 establish deliberate indifference. (ECF No. 91 at 5-8.) See also Toguchi v. Chung, 391 25 F.3d 1051, 1058 (9th Cir. 2004) (“[A] mere ‘difference of medical opinion ... [is] insufficient, 26 as a matter of law, to establish deliberate indifference.’”) (citation omitted). The Court also 27 agrees with both Defendants’ argument and Judge Carry’s conclusion that the evidence 28 establishes Plaintiff’s alleged injury to his finger was insufficiently severe to constitute a 1 serious medical need. (ECF No. 91 at 8-9, see also ECF Nos. 94 at 3, 61-1 at 22 (showing 2 in sealed document that Plaintiff’s finger was evaluated on March 10, 2015; he was told 3 to rest it and follow up as needed), 21 (stating no swelling or redness of the hand was 4 observed during another examination on March 31, 2015).) The Court will therefore 5 overrule Plaintiff’s objection, and accept and adopt Judge Carry’s R&R in full. 6 III. CONCLUSION 7 The Court notes that the parties made several arguments and cited to several cases 8 not discussed above. The Court has reviewed these arguments and cases and determines 9 that they do not warrant discussion as they do not affect the outcome of the motion and 10 recommendation before the Court. 11 The Court accepts and adopts the Report and Recommendation of United States 12 Magistrate Judge Carla B. Carry (ECF No. 91) in its entirety. 13 It is therefore ordered that Defendants’ motion for summary judgment (ECF No. 59) 14 is granted. 15 It is further ordered that Plaintiff’s objection (ECF Nos. 92, 93) is overruled. 16 The Clerk of Court is directed to strike Plaintiff’s reply (ECF No. 95) filed in support 17 of his objection because he filed it without first obtaining the Court’s leave. 18 The Clerk of Court is further directed to enter judgment in accordance with this 19 order and close this case. 20 DATED THIS 29th day of August 2019.
22 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28