Robert Gardner v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2020
• Docket: 19-16047
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 17 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT J. GARDNER, individually, and No. 19-16047 as Co-Special Administrator of the Estate of Garrett E. Gardner, deceased; et al., D.C. No. 2:17-cv-00352-PAL

Plaintiffs-Appellants, MEMORANDUM* v.

LAS VEGAS METROPOLITAN POLICE DEPARTMENT; NAPHCARE,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Peggy A. Leen, Magistrate Judge, Presiding

Argued and Submitted December 7, 2020 San Francisco, California

Before: LUCERO,** W. FLETCHER, and IKUTA, Circuit Judges.

Appellants challenge the district court’s summary judgment grant in favor of

defendants Las Vegas Metropolitan Police Department (LVMPD) and NaphCare,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Inc., a private contractor providing medical services in Clark County Detention

Center (CCDC). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

We apply an objective deliberate indifference standard to claims of

inadequate medical treatment brought by pretrial detainees. Gordon v. Cty. of

Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018).1 The third element of the

Gordon test requires a showing that “the defendant did not take reasonable

available measures to abate” a substantial risk that the plaintiff would suffer

serious harm, “even though a reasonable official in the circumstances would have

appreciated the high degree of risk involved—making the consequences of the

defendant’s conduct obvious[.]” Id. at 1125.

In light of the unique manifestation of Gardner’s underlying cancer, even

viewing the facts in the light most favorable to plaintiffs, the record does not

disclose a genuine issue of material fact as to whether his serious medical need was

so apparent as to render the consequences of the defendants’ conduct “obvious.”

Id. The record shows that Gardner may have shown symptoms of illness before his

hospitalization. But it does not show that those symptoms were evidence of the

cancer from which he suffered, or were enough to raise a material dispute over

1 Plaintiffs’ argument that the standards from Youngberg v. Romeo, 457 U.S. 307 (1982), and Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003), apply here is contrary to our caselaw. 2 whether the staff acted with deliberate indifference. A single statement in a non-

examining expert’s opinion letter is insufficient to establish a genuine issue of

material fact for trial. See Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1252

(9th Cir. 2010), overruled on other grounds by Castro v. Cty. of Los Angeles, 833

F.3d 1060 (9th Cir. 2016).

To the extent plaintiffs raise technical challenges to the sufficiency of the

summary judgment briefing below, we find no error. The parties conceded the

authenticity of various records at the hearing, and the district court properly

exercised its discretion in applying the local rules. See Ghazali v. Moran, 46 F.3d

52, 53 (9th Cir. 1995) (per curiam) (quoting United States v. Warren, 601 F.2d

471, 474 (9th Cir. 1979)) (“Only in rare cases will we question the exercise of

discretion in connection with the application of local rules.”).

AFFIRMED.