Hubble v. Marks

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CHRISTOPHER R. HUBBLE, Case No. 3:22-cv-00277-MMD-CSD

7 Plaintiff, ORDER v. 8 DANA MARKS, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Christopher Hubble, who is incarcerated at Lovelock Correctional Center 13 (“LCC”), brings this action against LCC officials and medical personnel1 under 42 U.S.C. 14 § 1983. (ECF No. 1-1 (“Complaint”).) Defendants filed a motion for summary judgment. 15 (ECF No. 91 (“Motion”)2.) Before the Court is United States Magistrate Judge Craig S. 16 Denney’s Report and Recommendation (“R&R”), recommending that the Court deny the 17 Motion as to Defendant Dana Marks, grant the Motion as to several other defendants, 18 and dismiss Doe defendants without prejudice. (ECF No. 101.) Defendants timely 19 objected to the R&R (ECF No. 102 (“Objection”)), and Hubble responded (ECF No. 103 20 (“Response”)). For the reasons explained below, the Court overrules the Objection and 21 adopts the R&R in full. 22 /// 23 /// 24 /// 25

26 1Defendants are Dr. Dana Marks, Nurse Poag, Nurse Erin Parks, Nurse Cameron Mell, Dr. Michael Minev, Dr. Martin Naughton, and Warden Tim Garrett. (ECF Nos. 31 27 (order screening first amended complaint), 78-79 (voluntarily dismissing Defendants Rusty Donnelly, Nurse Brian, and Nurse Clare).) 28 2Plaintiff responded to the Motion (ECF Nos. 96, 97-1, 97-2) and Defendants 2 On July 13, 2020, Hubble requested a doctor’s appointment at LCC so that he 3 could be seen regarding “a large painful lump on the back of [his] neck.” (ECF No. 92-1 4 at 4.) He was seen ten days later. (Id.) On July 30, 2020, Hubble sent another medical 5 kite complaining of “a great deal of pain” in his neck and numbness in his pinky and ring 6 finger. (Id. at 3.) He noted that the “pain ha[d] increased and constantly gotten worse.” 7 (Id.) A doctor saw him on August 7, 2020, and recommended ice to Hubble’s left elbow 8 at night. (Id. at 2-3.) Hubble was then given an ice pack. (Id.; ECF No. 96 at 2.) 9 Hubble filed an Informal Grievance on August 10, 2020, requesting a Lyrica 10 prescription for his neck pain that had affected “all aspects” of his life, including sleep, for 11 over a month. (ECF No. 97-1 at 8.) His grievance was denied in November 2020 because 12 he had seen Marks on August 6 and September 9, 2020. (Id.) Marks was Plaintiff’s 13 primary treating physician throughout the relevant time period. 14 On September 9, 2020, Marks noted that Hubble’s then-current drug regimen was 15 giving him no relief from his sciatica, which was interfering with his sleep. (ECF No. 92-1 16 at 6.) Marks requested Lyrica for Hubble. (Id.) Marks also requested x-rays of Hubble’s 17 knees and cervical spine and a bottom bunk on the lower tier for Hubble to sleep in. (Id. 18 at 7.) The next day, Hubble sent a kite requesting confirmation of these orders. (Id. at 8.) 19 The responder confirmed. (Id.) 20 On October 5, 2020, Hubble sent another kite requesting a modification to his 21 Lyrica prescription because he still struggled with neck, shoulder, and arm pain and 22 sciatica during the night. (Id. at 10.) He wanted to take extended-release Lyrica twice a 23 day or regular Lyrica three times a day. (Id.) Marks denied this request ten days later due 24 to Hubble “taking too many sedating medications.” (Id.) On November 25, 2020, Hubble 25 requested an appointment with Marks for “severe nerve issues” in his back and legs that 26 left him “barely” able to walk. (Id. at 12.) Hubble requested treatment that could be ordered 27 3The following facts are undisputed unless otherwise noted. 28 2 again requested an appointment after another three weeks had passed. (Id. at 13.) There 3 is a notation that Hubble saw Marks regarding these issues. (Id. (stating repeatedly that 4 the appointment with Marks was on January 19, 2022); ECF No. 91 at 2 (stating the 5 appointment was a year earlier on January 19, 2021).) 6 Hubble sent another kite on May 20, 2021, referencing a discussion with Marks 7 regarding the “lack of options for the replacement of Lyrica.” (Id. at 17.) Hubble noted that, 8 after some independent research, he found two non-narcotic, non-habit-forming 9 mediations (Baclofen and Tramadol) that might reduce his “massive amount of pain” and 10 requested that Marks prescribe him these medications. (Id.) The responder wrote that 11 Hubble would be scheduled. (Id.) On June 18, 2021, Hubble sent a follow-up kite, as 12 stopping Lyrica due to its “unbearable side effects” left him to deal with pain “beyond what 13 [he could] handle.” (Id. at 18.) Hubble indicated his belief that “Dr. Marks already ha[d] a 14 full understanding of [his] need to control the pain,” and requested a prescription for 15 Tramadol. (Id.) 16 Hubble filed another Informal Grievance on July 26, 2021, claiming that Marks had 17 “refuse[d] all treatment” and “ignored all forms of verbal and written notification of the 18 ongoing an[d] dire situation.” (ECF No. 97-1 at 7.) The grievance noted that Hubble 19 suffered from the following “life-long disabilities”: loose hardware, osteoarthritis, and 20 unresolved bone and hardware issues. (Id.) He requested daily ice packs, heating pads, 21 x-pillows, shoes, and Tramadol. (Id.) Hubble raised this grievance to Level 1 and Level 2 22 but never received a response. (Id.) 23 On August 25, 2021, Hubble sent a kite asking what he had to do “to get what [he] 24 medically require[d],” as he had needs “beyond ‘free’ Tylenol,” sent in “several kites” 25 requesting resolutions that did not require a doctor, and the doctor did not need to 26 examine him to prescribe new medications. (ECF No. 92-1 at 20.) The next day the kite 27 was forwarded to the director of nursing services for review. (Id.; ECF No. 91 at 3.) On 28 September 3, 2021, Hubble requested care for muscle cramps that were a side effect of 2 response. (Id.) Less than a week later, Hubble sent another kite asking whether the x-ray 3 machine had been repaired, since he had been waiting for more than a year to receive 4 the x-rays that were ordered for him. (Id. at 22.) The kite was referred to Marks, and the 5 response indicated that LCC was still unable to do spine x-rays. (Id.) 6 On October 21, 2021, Hubbe sent a kite thanking D.O.N. Ms. Parks for “resolving 7 [his] medical needs” and the resultant “massive improvement to [his] quality of life.” (Id. 8 at 23.) However, he still inquired as to the progress with his medical lay-in orders, 9 discussed medications, and “much needed” ice packs. (Id.) The responded indicated that 10 Hubble had been “seen by MD.” (Id.) 11 On November 1, 2021, Hubble requested to see Dr. Caroll because he was being 12 denied or not considered for other medications because of his mental health medications. 13 (Id. at 24.) Hubble was scheduled for an appointment. (Id.) 14 On December 15, 2021, Hubble sent a kite stating that he could not mentally 15 handle the pain and suffering caused by his surgical hardware, spina bifida, and 16 osteoarthritis. (Id. at 25.) Hubble claimed that he had been medically neglected for years. 17 (Id.) A November 2007 radiology report from LCC stated that a pelvic x-ray indicated that 18 Hubble had spina bifida occulta at S1. (Id. at 34; ECF No. 97-1 at 2.) Caroll saw Hubble 19 on February 1, 2022. (ECF Nos. 91 at 3; 92-1 at 26.) Hubble told Carroll that Marks 20 wanted her to recommend nerve pain medication, specifically either Haldol or SNRI. (ECF 21 No. 92-1 at 26.) Carroll noted that Haldol would be inappropriate, but Cymbalta would be 22 okay. (Id.) The chart also noted that Hubble was sleeping three to four hours each night. 23 (Id.) That same day, Hubble sent a kite to Marks stating that Carroll recommended that 24 he take Cymbalta but that she does not treat things like nerve pain. (Id. at 28.) Hubble 25 requested to try Cymbalta in combination with Tramadol muscle relaxer. (Id.) The 26 response indicated that Hubble would be receiving Cymbalta and asked Hubble to send 27 a kite if his pain lessened after six weeks. (Id.) 28 /// 2 worsening spinal pain” that left him unable to perform daily functions, sleep, or work 3 without pain medication. (ECF No. 97-1 at 25.) He requested to restart his psychiatric 4 medication. (Id.) On February 20, 2022, Marks ordered wider shoes with support to relieve 5 Hubble’s chronic back, knee, and ankle pain. (ECF No. 92-1 at 29.) 6 On February 27, 2022, Hubble kited Marks to ask if he could continue receiving 7 Cymbalta beyond the ten-day prescription he received because it reduced his pain to 8 “levels that are more bearable.” (Id. at 30.) Hubble was concerned that, without the 9 combination of medications he was receiving, the pain would “again be unbearable.” (Id.) 10 The kite was marked “received” but had no response. (Id.) 11 On March 11, 2022, Hubble kited Marks again to ask why Marks had stopped 12 giving him Cymbalta after seven days even though it “magically resolved” the pain he had 13 been experiencing for years. (Id. at 31.) Hubble also requested ice packs for his surgical 14 hardware suffering. (Id.) A response dated March 30th stated that Hubble was seen by 15 an orthopedic specialist on March 28, 2022. (Id.) Dr. Leon Jackson ran cervical spine 16 imaging of Hubble on March 28, 2022, and found that he had ‘negative cervical spine,’ as 17 his alignment was “within normal limits with no fracture or subluxation” and the imaging 18 did not show significant degenerative changes. (ECF No. 97-1 at 3.) 19 On April 1, 2022, Hubble sent a kite to Marks asking for something to reduce his 20 pain enough to “get some sleep.” (ECF No. 92-1 at 27.) Ibuprofen and Tylenol were not 21 providing “any kind of relief,” even at the highest level recommended. (Id.) The kite was 22 marked “received” but had no response. (Id.) On April 19, 2022, Hubble saw a medical 23 provider and signed a release of liability for refusal to provide him Cymbalta after he had 24 an adverse reaction to it. (Id. at 32-33.) An MRI of Hubble’s cervical spine was taken on 25 July 22, 2022. (ECF No. 97-1 at 4.) The MRI showed that Hubble’s C5-C7 vertebrae had 26 “[m]ild posterior disc bulging . . . without significant spinal stenosis” and “mild foraminal 27 narrowing.” (Id.) 28 /// 2 This Court “may accept, reject, or modify, in whole or in part, the findings or 3 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 4 timely objects to a magistrate judge’s R&R, the Court is required to “make a de novo 5 determination of those portions of the R&R to which objection is made.” Id. The Court will 6 engage in de novo review of the sections of the R&R related to Defendant Marks—in 7 particular, Judge Denney’s recommendations on Marks’ deliberate indifference and 8 qualified immunity defense—because Defendants only objected to these findings. (ECF 9 No. 102.) All other recommendations in the R&R will be reviewed for clear error. See 10 United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003). 11 A. Marks’ Deliberate Indifference 12 Defendants first object to Judge Denney’s finding that there remains a genuine 13 dispute of material fact as to whether Marks was deliberately indifferent to Hubble’s 14 serious medical needs. (ECF No. 102 at 3.) See Fed. R. Civ. P. 56; Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323-24 (1986) (setting out the summary judgment standard). See 16 also Farmer v. Brennan, 511 U.S. 825, 828 (1994) (holding that a prison official violates 17 the Eighth Amendment when they act with “deliberate indifference” to the serious medical 18 needs of a prisoner); Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012) (“To establish 19 an Eighth Amendment violation, a plaintiff must satisfy both an objective standard—that 20 the deprivation was serious enough to constitute cruel and unusual punishment—and a 21 subjective standard—deliberate indifference.”). 22 In the R&R, Judge Denney first concludes that Hubble sufficiently demonstrates 23 the existence of a serious medical need. (ECF No. 101 at 12.) See Jett v. Penner, 439 24 F.3d 1091, 1096 (9th Cir. 2006) (“[T]he plaintiff must show a serious medical need by 25 demonstrating that failure to treat a prisoner’s condition could result in further significant 26 injury or the unnecessary and wanton infliction of pain.”) (internal quotations omitted). 27 Judge Denney points to a “plethora of kites and grievances as well as . . . progress notes 28 in [Hubble’s] medical records where Plaintiff continued to complain that he was 2 record includes ample medical evidence of long-term chronic and substantial pain 3 constituting a serious medical need. (ECF No. 97-1 at 25 (February 2022 kite stating that 4 Hubble had unbearable, progressively worsening spinal pain impacting his ability to 5 function).) See also McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), rev'd on 6 other grounds, WMX Tech, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (noting that courts 7 evaluate "the seriousness of the prisoner's medical need and the nature of the 8 defendant's response to that need"). 9 Judge Denney next concludes that factual disputes exist as to whether Marks’ 10 conduct amounted to deliberate indifference. (ECF No. 101 at 13-14.) The Court agrees 11 that taking the evidence together, “a fact finder could determine that Dr. Marks knew 12 Plaintiff suffered from chronic pain, but he did not act reasonably to adequately address 13 this pain.” (Id. at 14.) See Farmer, 511 U.S. at 837 (requiring as a minimum that the prison 14 official “knows of and disregards an excessive risk to inmate health or safety; the official 15 must both be aware of facts from which the inference could be drawn that a substantial 16 risk of serious harm exists, and he must also draw the inference”). In particular, the record 17 shows that Plaintiff submitted request after request for medical review because, among 18 other things, his pain was uncontrolled at night; many of his complaints received no 19 response. (ECF No. 101 at 13-14.) When side effects required Hubble to stop taking the 20 medication Lyrica, he was not offered an alternative for months. (Id.) And when another 21 medication was later found to be effective, Hubble’s requests to continue that treatment 22 were ignored or denied with no explanation. (Id.) The record also supports that Hubble 23 needed a spinal x-ray, that no action was taken to procure x-rays in light of a broken 24 machine, and that Hubble was not referred to an orthopedic specialist for several years. 25 (Id.) 26 In their Objection, Defendants argue that Hubble has not alleged that Marks was 27 personally responsible for scheduling appointments or responding to medical kites which 28 were not addressed to him. (ECF No. 102 at 3.) They also argue that Plaintiff improperly 2 it remains that Hubble was referred to an outside consultant, an orthopedic specialist, 3 with an appointment scheduled and a visit accomplished within six months during a time 4 when COVID-19 was still restricting non-emergent medical care.” (Id.) Finally, Defendants 5 argue that Hubble had difficulty deciding whether he wanted to undergo surgery, that 6 Marks has never refused to treat Hubble, and that “[e]ach time Hubble saw Dr. Marks, 7 additional options were considered.” (Id.) It is true that a medical professional’s 8 negligence or delay does not, taken alone, evince a deliberate indifference claim. See 9 Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jett, 439 F.3d at 1096. Nevertheless, the 10 Court looks at the evidence in the record cumulatively and construes the facts therein in 11 the light most favorable to Plaintiff as the non-moving party. A fact finder could reasonably 12 conclude that Marks was aware of Hubble’s continuing severe pain and medication 13 concerns over the course of multiple years—regardless of his personal role in scheduling 14 appointments—and that his decisions constituted a “purposeful act or failure to respond” 15 to Hubble’s pain leading to further harm. See Jett, 439 F.3d at 1096; Shapley v. Nevada 16 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (“[The] mere delay of 17 surgery, without more, is insufficient to state a claim of deliberate medical indifference.”). 18 While some evidence may indeed weigh in Defendants favor—for example, 19 evidence of contraindications between relevant medications—Defendants do not meet 20 their burden to demonstrate the absence of a dispute at the summary judgment stage, 21 because the facts could still suggest more than “a difference of opinion between an inmate 22 and medical staff as to the appropriate medical treatment.” (ECF No. 91 at 7.) See Celotex 23 Corp., 477 U.S. at 323-24. 24 Accordingly, the Court overrules the Objection with respect to Judge Denney’s 25 findings on Marks’ deliberate indifference under the Eighth Amendment. 26 B. Qualified Immunity 27 Defendants also object to Judge Denney’s finding that Marks is not entitled to 28 qualified immunity. (ECF No. 102 at 3-4.) When considering whether a claim may proceed 2 whether the official violated a constitutional right and (2) whether the constitutional right 3 was clearly established.” C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th Cir. 2014) 4 (citing Pearson v. Callahan, 555 U.S. 223, 232, 240-42 (2009) (providing that a district 5 court may address these elements in any order). The Ninth Circuit has emphasized that 6 it is insufficient for a district court to end its qualified immunity analysis after determining 7 that a plaintiff has proven a constitutional injury, or that there are material facts in dispute 8 as to whether a constitutional violation occurred; the court must continue to the second 9 step of the inquiry and ask whether the right was clearly established at the time of the 10 violation. See, e.g., Carley v. Aranas, 103 F.4th 653, 660-61 (9th Cir. 2024). 11 As to the first prong of the analysis, the Court has already agreed with Judge 12 Denney’s determination that, viewing the facts in the light most favorable to Plaintiff, a 13 reasonable jury could determine that Marks violated Hubble’s Eighth Amendment rights. 14 (ECF No. 101 at 17-18.) See Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014) 15 (noting that a court must view all evidence and related inferences in the light most 16 favorable to the nonmoving party). 17 Defendants primarily object that under the second prong of the analysis, there is 18 no “clearly established right” at issue in this action, given that any such right must be 19 defined narrowly. (ECF No. 102 at 3-4.) The Court is unpersuaded by this argument. “For 20 a constitutional right to be clearly established, its contours ‘must be sufficiently clear that 21 a reasonable official would understand that what he is doing violates that right.’” Hope v. 22 Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640 23 (1987)). In the Objection, Defendants point to the Ninth Circuit’s recent ruling in Carley v. 24 Aranas, 103 F.4th, decided after their original Motion was filed in this action, where the 25 circuit court found that the fact that an “official knows of and disregards an excessive risk 26 to inmate health” is not enough to indicate a clearly established constitutional right. Id. at 27 660-61. Instead, “the relevant right must have been defined more narrowly” than the 28 general rule from Farmer. Id. at 661 (quoting Hampton v. California, 83 F.4th 754, 769 2 substantial risk of harm at a high level of generality. Hubble’s claims rest on Marks’ 3 continued and purposeful lack of response to Hubble’s chronic pain, despite evidence of 4 the severity of that pain. (ECF No. 96 at 7 (responding to Defendants’ Motion and 5 emphasizing that “[t]he entire medical records of over 1000 pages and the numerous but 6 consistent medical Kites show without doubt a pattern, a conscious disregard for the 7 health condition of the plaintiff” reflecting the “conscious disregard of his chief complaint— 8 chronic pains”).) Hubble asserts that “[Dr. Marks h]aving chosen to disbelieve him, there 9 became a wholesale disregard of every other issue no matter how serious the risk and 10 how significant the consequence.” (Id.) The Court finds these factual circumstances 11 sufficiently support that a reasonable defendant would be on notice that their actions 12 violate the constitution. See Stewart v. Aranas, 32 F.4th 1192, 1194 (9th Cir. 2022) 13 (finding that a clearly established right existed when prison doctors failed to treat a 14 plaintiff’s deteriorating prostate over the course of multiple years and holding that “mere 15 disagreement with a medical treatment plan is not deliberate indifference [ . . . b]ut 16 continuation of the same treatment in the face of obvious failure is”).4 17 Accordingly, the Court overrules the Objection to the R&R as to Marks’ qualified 18 immunity defense. The Court will allow Hubble’s claim against Marks to proceed. 19 C. Remaining Findings 20 As to the remaining portions of the R&R to which Defendants did not object, the 21 Court finds that Judge Denney did not clearly err and adopts the recommendations, 22 granting summary judgment in favor of all other defendants and dismissing Doe 23

24 4By contrast, Carley involved the question of whether prison medical personnel were on notice that an official prison medical directive, with which they complied, violated 25 the constitution. See 103 F.4th at 660-61 (addressing claims that prison doctors were deliberately indifferent when acting in line with prison Hepatitis C treatment protocols and 26 concluding that “the appropriately narrow inquiry asks whether a prison medical director between August 2013 and May 2018 would have been on notice that the NDOC [hepatitis 27 treatment] policy was unconstitutional at the time”). While Defendants in this action argue summarily that they complied with medical directives (ECF Nos. 91 at 8, 91-1, 91-2, 91- 28 3) the Court finds that material facts remain disputed as to whether and to what extent 1 || defendants without prejudice. See Reyna-Tapia, 328 F.3d at 1116. 2 || IV. CONCLUSION 3 The Court notes that the parties made several arguments and cited to several 4 || cases not discussed above. The Court has reviewed these arguments and cases and 5 || determines that they do not warrant discussion as they do not affect the outcome of the 6 || motion before the Court. 7 It is therefore ordered that Defendants’ Objection (ECF No. 102) to Judge 8 || Denney’s Report and Recommendation (ECF No. 101) is overruled. 9 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 10 || 101) is accepted and adopted in full. 11 It is further ordered that Defendants’ Motion for Summary Judgment (ECF No. 91) 12 || is granted in part and denied in part. The Motion is granted as to Defendants Poag, Parks, 13 || Mell, Dr. Minev, Dr. Naughton, and Garrett. The Motion is denied as to Defendant Marks. 14 It is further ordered that Defendants Doe Utilization Review Members are 15 || dismissed from this action without prejudice. 16 The Court refers this case to Magistrate Judge Denney to conduct a settlement 17 || conference. The proposed joint pretrial order is due 30 days from the settlement 18 || conference. 19 DATED THIS 19" Day of December 2024.

21 MIRANDA M. DU 22 UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 11