3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 KEVIN GILL, Case No. 3:23-cv-00360-MMD-CSD
7 Plaintiffs, ORDER v. 8 DOCTOR HALKI, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Kevin Gill, who is an inmate in the custody of the Nevada 13 Department of Corrections, brings this action under 42 U.S.C. § 1983. Before the Court 14 is the Report and Recommendation of United States Magistrate Judge Craig S. Denney 15 (ECF No. 51 (“R&R”)) recommending the Court grant Defendants’ motions for summary 16 judgment (ECF Nos. 35, 41).1 Gill objected to the R&R (ECF No. 52) (“Objection”)) and 17 Defendants responded to the Objection (ECF Nos. 53, 54). As further explained below, 18 the Court overrules Gill’s Objection and adopts the R&R in full. 19 II. DISCUSSION 20 Gill filed a pro se civil rights complaint, which the court screened and allowed to 21 proceed on a claim of Eighth Amendment deliberate indifference against Defendants 22 John Halki, Mike Minev, and John Doe, later identified as Jessica Rambur. (ECF No. 3.) 23 Gill alleged that following a neck surgery performed by Dr. Moore, he had follow-up 24 appointments with Halki, who smelled of alcohol. (ECF No. 4 at 3.) Gill claimed that Halki 25 went against all advice and recommendations of Dr. Moore, including by disregarding 26 Gill’s complaints about his ineffective pain medication, denying him physical therapy, and 27 telling him not to worry because his pain would go away. (Id.) 28 2 find case law to support the contention that Halki’s alleged workplace inebriation 3 establishes a constitutional violation. (ECF No. 51 at 11.) Accordingly, Judge Denney 4 then assessed whether Halki’s specific treatment decisions amounted to deliberate 5 indifference, and, finding that they did not, he recommends granting summary judgment 6 as to Halki. (Id.) Judge Denney recommends the Court grant summary judgment as to 7 Defendants Rambur and Minev because he found no requisite causal connection for 8 liability under section 1983. (ECF No. 51 at 15-16.) 9 The Court “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 11 timely objects to a magistrate judge’s Report and Recommendation, the Court is required 12 to “make a de novo determination of those portions of the [report and recommendation] 13 to which objection is made.” Id. The Court’s review is thus de novo because Gill filed his 14 Objection.2 15 A. Defendant Halki 16 First, Gill objects to Judge Denney’s recommendation as to Halki. Generously 17 construed, Gill argues in his Objection that Halki violated his Eighth Amendment rights 18 because Halki treated Gill while intoxicated, in violation of NRS § 636.306(1)(A). (ECF 19 No. 52 at 2-3.) Gill raises additional objections previously raised in his Complaint, 20 including that Halki’s prescription of psychiatric medications and denial of physical 21 therapy violated his Eighth Amendment rights. (ECF No. 52 at 5.) 22 The Court disagrees with Gill. “[A] complaint that a physician has been negligent 23 in diagnosing or treating a medical condition does not state a valid claim of medical 24 mistreatment under the Eighth Amendment. Medical malpractice does not become a 25 constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 26 U.S. 97, 106 (1976); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Toguchi 27 2The Court incorporates by reference and adopts Judge Denney’s recitation of 28 Gill’s allegations in the R&R. 2 legal standard. A showing of medical malpractice or negligence is insufficient to establish 3 a constitutional deprivation under the Eighth Amendment.”). Even gross negligence is 4 insufficient to establish deliberate indifference to serious medical needs. See Toguchi, 5 391 F.3d at 1060. Even if Defendant Halki was allegedly intoxicated during Gill’s follow 6 up appointments, this alone would not constitute a constitutional violation. Moreover, the 7 statutory provision Gill cites concerns actions of medical professionals that may result in 8 disciplinary action or the denial of licensure. It does not, however, create a statutory cause 9 of action for Gill’s claim. See NRS § 636.306(1)(A). 10 Regarding Halki’s treatment decisions, “typically, ‘[a] difference of opinion between 11 a physician and the prisoner—or between medical professionals—concerning what 12 medical care is appropriate does not amount to deliberate indifference.’” Edmo v. Corizon, 13 Inc., 935 F.3d 757, 786 (9th Cir. 2019) (quoting Snow v. McDaniel, 681 F.3d 978, 897 14 (9th Cir. 2012)). To show deliberate indifference, the plaintiff must show that the course 15 of treatment the doctors chose was medically unacceptable under the circumstances and 16 that the defendants chose this course in conscious disregard of an excessive risk to the 17 plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citation and 18 internal quotation marks omitted). 19 Gill has not sufficiently raised a genuine issue of material fact in his Objection.3 As 20 to Halki’s prescription of psychiatric medications, Gill argues that Halki inappropriately 21 prescribed him Cymbalta, a psychiatric medication that is ineffective for pain treatment. 22 (ECF No. 3-1 at 4.) However, the record indicates that Cymbalta is an appropriate 23 medication for neuropathic pain like Gill suffered from. (ECF No. 41-6 at 7-8.) Moreover, 24 when Gill reported that Cymbalta was giving him “bad thoughts” he was offered a different 25 medication, which he refused. (ECF No. 41-6 at 471.) The record also shows that Gill has 26
27 3An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 28 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248. 2 was being refused a narcotic. (Id. at 409, 471.) As to the allegation that Halki refused to 3 prescribe physical therapy against Dr. Moore’s orders, the record shows that three-weeks 4 post-surgery, Dr. Moore saw Gill for a follow-up appointment. (ECF No. 50-2 at 578.) 5 Moore noted that “[w]e have told him we would hold off on physical therapy at this time” 6 and would assess in one month’s time whether Gill could begin physical therapy. (ECF 7 No. 50-2 at 578.) There is no record that Halki personally deprived Gill of physical therapy. 8 Accordingly, the Court finds that Gill has failed to establish the existence of a 9 genuine dispute of material fact as to the deliberate indifference claim relating to 10 Defendant Halki. 11 B. Defendants Minev and Rambur 12 Gill objects that Defendants Minev and Rambur knew that Dr. Halki was in violation 13 of state law after he filed his grievance and failed to act. (ECF No. 52 at 7.) He argues 14 that both Defendants violated his rights because Halki should have been investigated for 15 alcohol abuse in the workplace. (Id. at 9-10.) 16 The Court disagrees with Gill.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 KEVIN GILL, Case No. 3:23-cv-00360-MMD-CSD
7 Plaintiffs, ORDER v. 8 DOCTOR HALKI, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Kevin Gill, who is an inmate in the custody of the Nevada 13 Department of Corrections, brings this action under 42 U.S.C. § 1983. Before the Court 14 is the Report and Recommendation of United States Magistrate Judge Craig S. Denney 15 (ECF No. 51 (“R&R”)) recommending the Court grant Defendants’ motions for summary 16 judgment (ECF Nos. 35, 41).1 Gill objected to the R&R (ECF No. 52) (“Objection”)) and 17 Defendants responded to the Objection (ECF Nos. 53, 54). As further explained below, 18 the Court overrules Gill’s Objection and adopts the R&R in full. 19 II. DISCUSSION 20 Gill filed a pro se civil rights complaint, which the court screened and allowed to 21 proceed on a claim of Eighth Amendment deliberate indifference against Defendants 22 John Halki, Mike Minev, and John Doe, later identified as Jessica Rambur. (ECF No. 3.) 23 Gill alleged that following a neck surgery performed by Dr. Moore, he had follow-up 24 appointments with Halki, who smelled of alcohol. (ECF No. 4 at 3.) Gill claimed that Halki 25 went against all advice and recommendations of Dr. Moore, including by disregarding 26 Gill’s complaints about his ineffective pain medication, denying him physical therapy, and 27 telling him not to worry because his pain would go away. (Id.) 28 2 find case law to support the contention that Halki’s alleged workplace inebriation 3 establishes a constitutional violation. (ECF No. 51 at 11.) Accordingly, Judge Denney 4 then assessed whether Halki’s specific treatment decisions amounted to deliberate 5 indifference, and, finding that they did not, he recommends granting summary judgment 6 as to Halki. (Id.) Judge Denney recommends the Court grant summary judgment as to 7 Defendants Rambur and Minev because he found no requisite causal connection for 8 liability under section 1983. (ECF No. 51 at 15-16.) 9 The Court “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 11 timely objects to a magistrate judge’s Report and Recommendation, the Court is required 12 to “make a de novo determination of those portions of the [report and recommendation] 13 to which objection is made.” Id. The Court’s review is thus de novo because Gill filed his 14 Objection.2 15 A. Defendant Halki 16 First, Gill objects to Judge Denney’s recommendation as to Halki. Generously 17 construed, Gill argues in his Objection that Halki violated his Eighth Amendment rights 18 because Halki treated Gill while intoxicated, in violation of NRS § 636.306(1)(A). (ECF 19 No. 52 at 2-3.) Gill raises additional objections previously raised in his Complaint, 20 including that Halki’s prescription of psychiatric medications and denial of physical 21 therapy violated his Eighth Amendment rights. (ECF No. 52 at 5.) 22 The Court disagrees with Gill. “[A] complaint that a physician has been negligent 23 in diagnosing or treating a medical condition does not state a valid claim of medical 24 mistreatment under the Eighth Amendment. Medical malpractice does not become a 25 constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 26 U.S. 97, 106 (1976); see also Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Toguchi 27 2The Court incorporates by reference and adopts Judge Denney’s recitation of 28 Gill’s allegations in the R&R. 2 legal standard. A showing of medical malpractice or negligence is insufficient to establish 3 a constitutional deprivation under the Eighth Amendment.”). Even gross negligence is 4 insufficient to establish deliberate indifference to serious medical needs. See Toguchi, 5 391 F.3d at 1060. Even if Defendant Halki was allegedly intoxicated during Gill’s follow 6 up appointments, this alone would not constitute a constitutional violation. Moreover, the 7 statutory provision Gill cites concerns actions of medical professionals that may result in 8 disciplinary action or the denial of licensure. It does not, however, create a statutory cause 9 of action for Gill’s claim. See NRS § 636.306(1)(A). 10 Regarding Halki’s treatment decisions, “typically, ‘[a] difference of opinion between 11 a physician and the prisoner—or between medical professionals—concerning what 12 medical care is appropriate does not amount to deliberate indifference.’” Edmo v. Corizon, 13 Inc., 935 F.3d 757, 786 (9th Cir. 2019) (quoting Snow v. McDaniel, 681 F.3d 978, 897 14 (9th Cir. 2012)). To show deliberate indifference, the plaintiff must show that the course 15 of treatment the doctors chose was medically unacceptable under the circumstances and 16 that the defendants chose this course in conscious disregard of an excessive risk to the 17 plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (citation and 18 internal quotation marks omitted). 19 Gill has not sufficiently raised a genuine issue of material fact in his Objection.3 As 20 to Halki’s prescription of psychiatric medications, Gill argues that Halki inappropriately 21 prescribed him Cymbalta, a psychiatric medication that is ineffective for pain treatment. 22 (ECF No. 3-1 at 4.) However, the record indicates that Cymbalta is an appropriate 23 medication for neuropathic pain like Gill suffered from. (ECF No. 41-6 at 7-8.) Moreover, 24 when Gill reported that Cymbalta was giving him “bad thoughts” he was offered a different 25 medication, which he refused. (ECF No. 41-6 at 471.) The record also shows that Gill has 26
27 3An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 28 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248. 2 was being refused a narcotic. (Id. at 409, 471.) As to the allegation that Halki refused to 3 prescribe physical therapy against Dr. Moore’s orders, the record shows that three-weeks 4 post-surgery, Dr. Moore saw Gill for a follow-up appointment. (ECF No. 50-2 at 578.) 5 Moore noted that “[w]e have told him we would hold off on physical therapy at this time” 6 and would assess in one month’s time whether Gill could begin physical therapy. (ECF 7 No. 50-2 at 578.) There is no record that Halki personally deprived Gill of physical therapy. 8 Accordingly, the Court finds that Gill has failed to establish the existence of a 9 genuine dispute of material fact as to the deliberate indifference claim relating to 10 Defendant Halki. 11 B. Defendants Minev and Rambur 12 Gill objects that Defendants Minev and Rambur knew that Dr. Halki was in violation 13 of state law after he filed his grievance and failed to act. (ECF No. 52 at 7.) He argues 14 that both Defendants violated his rights because Halki should have been investigated for 15 alcohol abuse in the workplace. (Id. at 9-10.) 16 The Court disagrees with Gill. “A supervisor may be liable only if (1) he or she is 17 personally involved in the constitutional deprivation, or (2) there is ‘a sufficient causal 18 connection between the supervisor's wrongful conduct and the constitutional violation.’ A 19 supervisor may be liable if the supervisor knew of the violations and failed to act to prevent 20 them.” Snow, 681 F.3d at 989 (internal quotations and citations omitted). However, as 21 discussed supra, Halki’s alleged intoxication, without more, does not give rise to a 22 constitutional violation. The Court thus finds that Gill has failed to establish any genuine 23 issue of material fact as to a constitutional violation as to Defendants Minev and Rambur. 24 Thus, the Court agrees with Judge Denney and will adopt the R&R in full. 25 III. CONCLUSION 26 The Court notes that the parties made several arguments and cited to several 27 cases not discussed above. The Court has reviewed these arguments and cases and 28 1 || determines that they do not warrant discussion as they do not affect the outcome of the 2 || motions before the Court. 3 It is therefore ordered that Gill's objection (ECF No. 52) to Judge Denney’s R&R is 4 || overruled. 5 It is further ordered that Judge Denney’s Report and Recommendation (ECF No. 6 || 51) is adopted in full. 7 It is further ordered that Defendants’ motions for summary judgment (ECF Nos. 8 || 35, 41) are granted. 9 It is further ordered that the Clerk of Court enter judgment in accordance with this 10 || order and close this case. 11 DATED THIS 28" Day of October 2025. 12
14 MIRANDAM.DU- ———<“‘“CSOC™~™~:C~S ‘5 UNITED STATES DISTRICT JUDGE
16 17 18 19 20 21 22 23 24 25 26 27 28