Pompilius v. State of Nevada ex rel Nevada Department of Corrections

• Court: District Court, D. Nevada
• Decided: September 30, 2023
• Docket: 2:21-cv-01331
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 AMMIANUS POMPILIUS, Case No. 2:21-cv-01331-RFB-DJA 8 Plaintiff, ORDER 9 v. 10 STATE OF NEVADA ex rel NEVADA 11 DEPARTMENT OF CORRECTIONS, et al, 12 Defendants. 13

14 15 I. INTRODUCTION Before the Court are Defendants’ Motion for Summary Judgment (ECF No. 55) and 16 17 Motion for Leave to File Plaintiff’s Medical Records Under Seal (ECF No. 56). For the reasons 18 stated herein, the motions are granted. 19 II. PROCEDURAL HISTORY 20 Plaintiff filed his complaint in state court on September 22, 2020. ECF No. 2 at 7. This 21 case was then removed on July 14, 2021. ECF No. 1. On February 7, 2022, Plaintiff filed a Motion 22 for Preliminary Injunction and a Motion for Leave to File Second Amended Complaint. ECF Nos. 23 8, 9. Plaintiff filed the Second Amended Complaint (“SAC”) on February 16, 2022. ECF Nos. 11. 24 On March 1, 2022, Plaintiff filed a “Motion for Order Granting Plaintiff’s Emergency Motion for 25 Preliminary Injunction.” ECF No. 13. On March 7, 2022, Defendants filed Plaintiff’s complete 26 medical records under seal and responded to the Motion for Preliminary Injunction. ECF Nos. 14, 27 17. On March 15, 2022, Defendants filed a Motion to Screen Second Amended Complaint. ECF 28 No. 19. 1 On June 7, 2022, the Court screened the SAC. See ECF Nos. 33, 39. It allowed the 2 following claims to proceed: Count One - First Amendment free exercise, Nevada Constitution, 3 Religious Land Use and Institutionalized Persons Act (“RLUIPA”) against Defendants Julio 4 Calderin, Brian Williams, and Calvin Johnson; Count Two - General negligence against 5 Defendants Calderin, Johnson, and Williams, and negligent training, supervision, and retention 6 against Defendants James Dzurenda, Williams, and Johnson; Count Three - Eighth Amendment 7 deliberate indifference (knee pain) against Drs. Bryan and Wulff; Count Four - Professional 8 negligence against Drs. Bryan and Wulff; Count Five - Eighth Amendment deliberate indifference 9 (hip pain/arthritis) against Drs. Bryan, Wulff, and unnamed Nevada Department of Corrections 10 (“NDOC”) medical staff; Count Six - Negligence against Drs. Bryan and Wulff (consolidated with 11 Count Four). Id. It, however, dismissed the following claims: Count Two – Negligent Infliction of 12 Emotional Distress and Intentional Infliction of Emotional Distress; Count Four negligence against 13 High Desert State Prison (“HDPS”) medical and the NDOC; and Count Five - Negligence against 14 HDSP medical and the NDOC. Id. 15 The Court granted in part and deferred in part Plaintiff’s Motion for Preliminary Injunction. 16 ECF No. 33. Defendants were ordered to arrange for Plaintiff to see HDSP’s general practitioner 17 for his hip and knee pain by June 17, 2022, and to arrange for Plaintiff to be seen by orthopedic 18 specialist Dr. Wulff at the next visit Dr. Wulff makes to the facility. The motion was deferred 19 insofar as Plaintiff requested the Court to order surgery or any particular course of medical 20 treatment at the time. 21 Defendants accepted service on August 8, 2022. ECF No. 40, 54. An Answer was filed 22 September 19, 2022. ECF No. 48. Discovery closed on December 28, 2022. ECF No. 49. 23 On January 25, 2023, Defendants filed the instant Motion for Summary Judgment. ECF 24 No. 55.1 To date, Plaintiff has neither responded to the motion nor requested any extension of time 25 to respond to the motion. 26 1 Defendants also filed the instant, accompanying Motion for Leave to File Plaintiff’s Medical Records Under 27 Seal. ECF No. 56. The Court grants this motion. See Hill v. Baker, No. 3:11-CV-00717, 2014 WL 177413, at *4 (D. Nev. Jan. 13, 2014) (explaining that medical privacy has qualified as a compelling reason for sealing records); see 28 also Kamakana v. City of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). 1 This Order follows. 2 3 III. LEGAL STANDARD Summary judgment is appropriate “if the movant shows there is no genuine issue as to any 4 5 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The 6 substantive law governing a matter determines which facts are material to a case. Anderson v. 7 Liberty Lobby, 477 U.S. 242, 248 (1986). 8 When considering the propriety of summary judgment, the court views all facts and draws 9 all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 10 11 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the nonmoving party “must 12 do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where 13 the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, 14 there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) 15 (internal quotation marks omitted). The nonmoving party may not merely rest on the allegations 16 17 of her pleadings; rather, she must produce specific facts—by affidavit or other evidence—showing 18 a genuine issue of fact. Anderson, 477 U.S. at 256. 19 “If a party fails to properly support an assertion of fact or fails to properly address another 20 party’s assertion of fact the court may: (1) give an opportunity to properly support or address the 21 fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if 22 23 the motion and supporting materials — including the facts considered undisputed — show that the 24 movant is entitled to it; or (4) issue any other appropriate order.” Heinemann v. Satterberg, 731 25 F.3d 914, 915 (9th Cir. 2013) (citing Fed. R. Civ. P. 56(e)). When a party fails to oppose a motion 26 for summary judgment, district courts must assess “whether the motion and supporting materials 27 entitle the movant to summary judgment.” Id. (citations and internal quotation marks omitted). 28 1 /// 2 IV. FACTUAL BACKGROUND 3 Plaintiff did not respond to the Motion for Summary Judgment or otherwise provide the 4 Court with any filings from which the Court is able to determine Plaintiff’s position on the factual 5 6 background of this case. The Court accordingly accepts the following facts as undisputed, based 7 on Defendants’ Motion for Summary Judgment (ECF No. 55) and other supporting materials in 8 the record. 9 Plaintiff is currently incarcerated within the NDOC. At all relevant times, Plaintiff was 10 housed at HDSP. From January 8, 2018 to October 8, 2020, Plaintiff filed eleven grievances 11 12 concerning his practice of religion, while incarnated with the NDOC. Beginning January 8, 2018, 13 Plaintiff filed a grievance claiming that he was denied chapel services “on Friday” because custody 14 staff did not receive a list that would allow him to go to services. Plaintiff alleged that names were 15 regularly removed from the Thelema chapel list (more than just himself), but he did not allege this 16 was done by Defendant Calderin, and it predates December 2018. The next grievance, filed 17 18 January 17, 2018, claimed that the NDOC was not properly recognizing Thelema religious 19 holidays. 20 Next, on April 13, 2018, Plaintiff complained that the chaplain or administration had an 21 ongoing campaign against Thelemites to deny them rooms in the chapel. In this grievance, Plaintiff 22 acknowledges being allowed to attend chapel services; his complaint was that Thelemite services 23 24 were required to be held outdoors. In his subsequent dated April 28, 2018 grievance, he contested 25 the denial of chapel rooms to Thelemites because he claimed that Thelema is not a nature-based 26 religion. This grievance acknowledges that Plaintiff was provided access to outdoor grounds for 27 religious services. On April 29, 2018, Plaintiff filed his first grievance seeking to have access to 28 1 the common fare diet based on his religion. 2 Thereafter, Plaintiff filed a grievance on May 5, 2018 because he received an unauthorized 3 mail slip for herbs that the chaplain told him he could order. He then grieved the Religious Review 4 Team’s denial of Qayinism being accepted by the NDOC as a standalone religion. Next, he filed 5 6 a second grievance on February 26, 2020, concerning the denial of his common fare diet for 7 Plaintiff, based on his religious beliefs. 8 On March 8, 2020, Plaintiff filed a separate grievance contesting the NDOC’s denial of 9 Qayinism as a standalone religion from Thelema. In this grievance, Plaintiff makes reference to 10 being allowed to return to the chapel on January 31, 2020; absent, however, was any claim that he 11 12 was denied access to the chapel for 13 months beginning in December of 2018. He also requested 13 that Defendant Calderin be fired for his continued antagonistic behavior toward Qayinite inmates. 14 There is, however, no claim that Defendant Calderin should be terminated pursuant to 15 Administrative Regulation (“AR”) 339 because of the results in an earlier case. 16 On May 24, 2020, Plaintiff filed a grievance concerning his request for authorization to 17 18 purchase yoga mats as part of a legal settlement agreement. Finally, on October 8, 2020, Plaintiff 19 filed a grievance claiming that he was being denied access to the chapel while Jewish inmates and 20 others were granted access. This claim appears to revolve around Covid-19 restrictions. It does not 21 allege that Calderin prohibited Plaintiff from attending religious services beginning in December 22 2018, for a period of 13 months. 23 24 Separately, Plaintiff claims to have injured his knee in or about 2018. He was initially seen 25 by Defendant Dr. Bryan on August 27, 2018. Dr. Bryan examined Plaintiff’s left knee, had x-rays 26 taken, ordered a knee brace, and arch support. They were provided to Plaintiff that same day. The 27 doctor also prescribed 600mg ibuprofen. The medication was provided to Plaintiff on August 31, 28 1 2018, and was refilled on September 21, 2018. Plaintiff was seen by Dr. Bryan again on November 2 6, 2018, was referred to the orthopedic clinic, and prescribed 500mg naproxen. He received the 3 medication on November 10, 2018, and a refill on December 15, 2018. 4 Defendant Dr. Wulff saw Plaintiff on December 14, 2018. The doctor performed an 5 6 examination of his left knee, reviewed the x-ray results, and recommended an MRI. The MRI was 7 approved on December 18, 2018, and initially scheduled for March 28, 2019. The MRI had to be 8 rescheduled two different times, and the imaging was performed on May 18, 2019. After the MRI 9 was complete, Plaintiff was seen by Dr. Wulff at the orthopedic clinic for a follow-up on June 26, 10 2019. Dr. Wulff wanted to review the MRI images before making a diagnosis, thus the doctor 11 12 recommended additional pain medications and a follow-up appointment. The NDOC followed the 13 recommendation, and Plaintiff received additional pain medication on June 29, 2019, with a refill 14 provided on August 30, 2019. 15 After personally reviewing the MRI results, Dr. Wulff determined surgery was not 16 necessary and relayed this to Plaintiff on July 24, 2019. The recommendation was a follow-up 17 18 appointment to discuss a cortisone injection in the knee, which Dr. Bryan followed. 19 On September 9, 2019, Dr. Wulff saw Plaintiff at the orthopedic clinic once again. The 20 diagnosis of the injury was mild osteo arthritis. Plaintiff was given an injection in his knee, and 21 the recommendation was for a return in three months to review the efficacy of the injection. This 22 recommendation was followed, and Plaintiff was scheduled for the orthopedic clinic follow-up in 23 24 three months. Another refill of pain medications was provided to Plaintiff on October 2, 2019. 25 On December 11, 2019, Dr. Wulff saw Plaintiff. The doctor performed an examination of 26 his knee, confirmed his diagnosis of mild osteo arthritis, and recommended a return appointment 27 after the NDOC obtained a celestone steroid injection to try in the knee as an alternative, with 28 1 further pain medications to Plaintiff. Dr. Bryan followed the recommendation, and scheduled 2 Plaintiff for the orthopedic clinic in three months, along with changing his pain medication 3 prescription. Plaintiff received additional pain medication on January 18, 2020. This medication 4 was refilled on February 15, 2020. 5 6 Dr. Bryan saw Plaintiff regarding his complaints of hip pain on March 9, 2020. The doctor 7 called for x-rays of his hips, changed his pain medications, and referred him to the orthopedic 8 clinic on March 18, 2020. X-rays of the pelvis and hips came back negative. The referral to the 9 orthopedic clinic was approved on March 12, 2020. Plaintiff’s orthopedic clinic appointment was 10 cancelled, however, because of the March 2020 Covid-19 related shutdowns. He was eventually 11 12 able to see Dr. Wulff about his hip pain at the orthopedic clinic on June 17, 2020, where an 13 examination was done on his left knee and hips. Dr. Wulff reviewed the x-rays, confirmed his 14 diagnosis of mild osteo arthritis in the knee, and diagnosed bursitis in the left hip. The 15 recommendation was for further injections into the knee and hip, instruction to Plaintiff on IT band 16 muscle stretching, and a follow up appointment in three months. The recommendations were 17 18 authorized, and Plaintiff was scheduled for the September orthopedic clinic. 19 On September 16, 2020, Plaintiff was seen again by Dr. Wulff. After a physical 20 examination, Dr. Wulff confirmed the diagnoses. He recommended resumption of ibuprofen with 21 no injections that day, reinforced the need for IT band muscle stretching, and with any follow-up 22 appointment “prn,” meaning pro re nata or as the situation demands. The NDOC again followed 23 24 the recommendation, with a new prescription for ibuprofen being ordered. This prescription was 25 refilled on or around October 4, 2020, and again on November 7, 2020. 26 /// 27 /// 28 1 V. DISCUSSION 2 For the reasons discussed below, the Court grants summary judgment in Defendants’ favor 3 on all Plaintiff’s Counts. 4 5 a. Count One against Defendants Calderin, Williams, and Johnson 6 The United States Supreme Court has held that inmates retain protections afforded by the 7 First Amendment “including its directive that no law shall prohibit the free exercise of religion.” 8 O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). To raise a viable claim under the Free 9 Exercise Clause, a prisoner must initially make a showing that the defendant has substantially 10 burdened a sincerely held religious belief. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 11 2008). 12 Here, the Court finds, based on the undisputed facts, that Plaintiff cannot establish that 13 Defendants substantially burdened practice of his religion. A review of the record, including 14 Plaintiff’s grievances, shows that Defendants did not substantially burden Plaintiff’s ability to 15 practice his religion, including by attending chapel services. 16 Similarly, the RLUIPA, which governs religious exercise by institutionalized persons, 17 provides in relevant part: “No government shall impose a substantial burden on the religious 18 exercise of a person residing in or confined to an institution . . . unless the government 19 demonstrates that imposition of the burden on that person–(1) is in furtherance of a compelling 20 governmental interest; and (2) is the least restrictive means of furthering that compelling 21 governmental interest.” 42 U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA claims are limited to injunctive 22 relief. Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015). 23 Based on the undisputed facts, Plaintiff alleges he was denied access to the chapel for 13 24 months, beginning in December of 2018. Presumably then his claim would have been resolved 25 after January 2020. Plaintiff does not appear to be asserting that he is currently being denied 26 chapel access. As stated above, RLUIPA claims are limited to injunctive relief. Accordingly, 27 Plaintiff’s RLUIPA claim fails as a result. 28 Because there are no genuine issues of material fact, and Plaintiff cannot establish a 1 claim under either the First Amendment and Nevada analogues and the RLUIPA based on the 2 undisputed facts in the record, the Court grants Defendants’ Motion for Summary Judgment 3 against Plaintiff’s claims under Count One. b. Count Two: General Negligence against Defendants Calderin, Johnson, 4 5 and Williams and Negligent Training, Supervision, and Retention against 6 Defendants Dzurenda, Williams, and Johnson 7 To state a claim for negligence, the plaintiff must show: 1) the defendant owed the plaintiff 8 a duty of care; 2) the defendant breached that duty; 3) the breach was the legal cause of the 9 plaintiff’s injury; and 4) the plaintiff suffered damages. 10 11 Plaintiff’s negligence claim asserts that Defendants acted negligently when they burdened 12 his ability to practice his religion. The Court incorporates by reference its analysis above of Count 13 One to this instant Count. In turn, it finds that there are no genuine issues of material fact, and 14 based upon the undisputed facts in the record, Plaintiff cannot establish that Defendants’ actions 15 breached any duty owed to him. 16 17 Separately, Plaintiff contends that Defendants acted negligently training, supervising, and 18 retaining Defendant Calderin by failing to dismiss or sanction him pursuant to AR 339 after he 19 was found to have lied on a grievance response involving religious practices in a previous case. 20 To state a claim for negligent training, supervision, and retention claim, the plaintiff must show: 21 (1) a general duty on the employer to use reasonable care in the training, supervision, and retention 22 23 of employees to ensure that they are fit for their positions, (2) breach, (3) injury, and (4) 24 causation. Hall v. SSF, Inc., 930 P.2d 94, 98 (Nev. 1996). 25 Once more, the Court incorporates by reference its Count One analysis to this instant 26 Count. In doing so, it finds that there are no genuine issues of material fact, and based upon the 27 undisputed facts in the record, Plaintiff cannot establish that Defendants’ actions breached any 28 1 duty owed to him. 2 Therefore, the Court grants Defendants’ Motion for Summary Judgment against Plaintiff’s 3 claims under Count Two. 4 c. Count Three and Count Five against Drs. Bryan, Wulff, and unnamed 5 6 NDOC medical staff 7 Count Three and Count Five are brought pursuant to the Eighth Amendment for deliberate 8 indifference to his serious medical needs. These Counts arise from his efforts to get medical 9 treatment for his knee and hip pains and arthritis. A prison official violates the Eighth Amendment 10 when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. 11 12 Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must 13 satisfy both an objective standard—that the deprivation was serious enough to constitute cruel and 14 unusual punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 15 681 F.3d 978, 985 (9th Cir. 2012). To establish the first prong, “the plaintiff must show a serious 16 medical need by demonstrating that failure to treat a prisoner’s condition could result in further 17 18 significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 19 1096 (9th Cir. 2006) (internal quotation marks omitted). To satisfy the deliberate indifference 20 prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner’s pain or 21 possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear 22 when prison officials deny, delay or intentionally interfere with medical treatment, or it may be 23 24 shown by the way in which prison physicians provide medical care.” Id. (internal quotations 25 omitted). 26 The Court finds, based on the undisputed facts, that Plaintiff cannot establish that 27 Defendants were deliberately indifferent to his medical needs. Indeed, Plaintiff has been diagnosed 28 1 with serious medical needs, including mild osteo arthritis in his left knee and trochanteric bursitis 2 in his left hip. That said, Plaintiff cannot establish that Defendants knew of or disregarded an 3 excessive risk to Plaintiff’s health denying him the necessary treatment, including medication. 4 There is nothing in the record, for instance, to suggest that Dr. Bryan was aware of any claims that 5 6 Plaintiff was going without pain medications. Nor is there anything that suggests that Dr. Wulff 7 was aware of any delay in Plaintiff first being seen for his left knee pain or that Dr. Wulff was 8 aware of any alleged delay in Plaintiff receiving pain medications. Further, Plaintiff has also not 9 established any facts that Defendants recommended, and approved, treatment were medically 10 unacceptable under the circumstances, or that any unnamed NDOC medical staff failed to follow 11 12 them. 13 Because there are no genuine issues of material fact, and Plaintiff cannot establish a claim 14 under the Eighth Amendment based upon the undisputed facts in the record, the Court grants 15 Defendants’ Motion for Summary Judgment against Plaintiff’s claims under Count Three and 16 Count Five. 17 18 d. Count Four and Count Six against Drs. Bryan and Wulff 19 As a preliminary matter, the Court addresses Defendants’ contention that these Counts fail 20 because Plaintiff failed to include an affidavit from a medical expert supporting these Counts 21 pursuant to Nevada Revised Statute 41A.071(1). The Court disagrees. Where state law claims are 22 brought in federal court based on diversity jurisdiction or pursuant to supplemental jurisdiction, 23 24 the Court must determine whether to apply state or federal substantive law. See, e.g., Las Vegas 25 Sands, LLC v. Nehme, 632 F.3d 526, 534 (9th Cir. 2011). Moreover, it is well established that 26 diversity jurisdiction-based cases pursued in federal court are subject to federal, not state, 27 procedure. Under Nevada law, a malpractice complaint filed without the affidavit is a legal nullity 28 1 and thus may not be amended. Washoe Med. Ctr. v. Second Judicial Dist. Court, 148 P.3d 790, 2 795 (Nev. 2006). The Court finds, however, that the Nevada Supreme Court’s determination in 3 Washoe Medical Center is a procedural and not a substantive determination. See Zohar v. 4 Zbiegien, 334 P.3d 402, 406 (Nev. 2014) (“[T]he NRS 41A.071 affidavit requirement is a 5 6 preliminary procedural rule subject to the notice-pleading standard, and thus, it must be liberally 7 construe[d] ... in a manner that is consistent with our NRCP 12 jurisprudence.”). Thus, the Court’s 8 instant analysis does not have to defer to such a requirement as Defendants appear to contend. See 9 Las Vegas Sands, LLC, 632 F.3d at 534. 10 “Professional negligence” is defined as “the failure of a provider of healthcare, in rendering 11 12 services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances 13 by similarly trained and experienced providers of health care.” Nev. Rev. Stat. § 41A.015. 14 “Allegations of breach of duty involving medical judgment, diagnosis, or treatment indicate that a 15 claim is for medical malpractice.” Szymborski v. Spring Mtn. Treatment Ctr., 403 P.3d 1280, 1284 16 (Nev. 2017). The Court incorporates by reference the applicable law from Count Two’s general 17 18 negligence analysis to this instant Count. 19 Ultimately, the Court finds that there are no genuine issues of material fact, and Plaintiff 20 cannot establish either a professional negligence or general negligence claim based on the 21 undisputed facts in the record. The Court incorporates by reference its Counts Three and Five 22 analysis to this Count and concludes that Defendants did not act negligently when they provided 23 24 Plaintiff with medical treatment for his various medical conditions. Therefore, the Court grants 25 Defendants’ Motion for Summary Judgment against Plaintiff’s claims under Count Four and Count 26 Six. 27 28 /// 1| 2 VI. CONCLUSION 3 IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (ECF 4| 55)is GRANTED. 5 IT IS FURTHER ORDERED that Defendants’ Motion for Leave to File Plaintiff's 6 | Medical Records Under Seal (ECF No. 56) is GRANTED. 7 IT IS FURTHER ORDERED that Plaintiff shall have thirty days from the date of the g | entry of this Order to file a Motion for Reconsideration of the Court’s Order. The motion should g| explain why Plaintiff failed to timely respond to Defendants’ Motion for Summary Judgment. If 19 | Plaintiff fails to file such motion within thirty days, the Clerk of the Court is instructed to enter 11 | Judgment and close this case accordingly. 12 13 DATED: September 30, 2023

16 RICHARD F. BOULWARE, II 7 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 13