Rodriguez v. NAPH Care

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JOSE ANTONIO RODRIGUEZ, Case No. 3:21-cv-00185-ART-CSD 5 Plaintiff, ORDER 6 v.

7 NAPHCARE, et al.,

8 Defendants.

9 10 Pro se Plaintiff Jose Antonio Rodriguez brings this action under 42 U.S.C. 11 § 1983. Under the screening order issued by the Court (ECF No. 5), Plaintiff 12 brings four claims: (1) a Fourteenth Amendment conditions of confinement claim 13 for denial of medical care against Defendant Dr. Eloy Ituarte relating to Plaintiff’s 14 missed chemotherapy session; (2) a Fourteenth Amendment conditions of 15 confinement claim against Defendant Porshe Hill for improperly removing an 16 object from Plaintiff’s chest; (3) a Fourteenth Amendment conditions of 17 confinement claim for denial of medical care against Defendant Frank Akpati for 18 lack of treatment for hepatitis C; and (4) a Monell claim against NaphCare for its 19 policy of denying treatment for hepatitis C. Before the Court are the Report and 20 Recommendation (“R&R” or “Recommendation”) of United States Magistrate 21 Judge Craig S. Denney (ECF No. 92) recommending that Defendants’ motion for 22 summary judgment (ECF No. 53) be granted, as well as various additional 23 objections and motions filed by Plaintiff (ECF Nos. 42, 48, 51, 93, 95). Plaintiff 24 filed an objection to the R&R on December 27, 2022. (ECF No. 92.) As explained 25 below, the Court adopts the R&R with respect to the claims relating to the missed 26 chemotherapy and denial of hepatitis C treatment and reverses the R&R with 27 respect to the claim for improper removal of the object in Plaintiff’s chest. The 28 Court denies Plaintiff’s additional motions. 2 The Court “may accept, reject, or modify, in whole or in part, the findings 3 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 4 a party fails to object to a magistrate judge’s recommendation, the Court is not 5 required to conduct “any review at all . . . of any issue that is not the subject of 6 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 7 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 8 magistrate judges’ findings and recommendations is required if, but only if, one 9 or both parties file objections to the findings and recommendations.”) (emphasis 10 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 11 the Court “need only satisfy itself that there is no clear error on the face of the 12 record in order to accept the recommendation.”). However, when a party does 13 serve and file written objections to the R&R, the Court “shall make a de novo 14 determination of those portions of the report or specified proposed findings or 15 recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). 16 The Court adopts the factual summaries set forth in the R&R by reference. 17 Judge Denney recommends granting Defendants’ motion for summary judgment 18 on Plaintiff’s claim relating to his missed chemotherapy treatment because there 19 is no evidence that Dr. Ituarte was personally responsible for Plaintiff missing his 20 chemotherapy appointment and because subsequent tests demonstrated that 21 Plaintiff’s testicular cancer was in remission, meaning Plaintiff suffered no harm 22 from the delay. (ECF No. 91 at 12-14.) Plaintiff argues that “Defendants took an 23 unnecessary risk that was reckless and given more time could’ve and still can 24 cause irrever[sible] damage to Plaintiff. This on [its] own is enough to [defeat] 25 summary judgment.” (ECF No. 92 at 2.) While the Court sympathizes with 26 Plaintiff’s position, some showing of injury or physical pain1 resulting from a

27 1 The Prison Litigation Reform Act provides that “[n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury 28 suffered while in custody without a prior showing of physical injury[.]” 42 U.S.C. § 1997e(e). 1 delayed or missed treatment is required in order to state a claim for a 2 constitutional violation. See Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th 3 Cir. 2018) (setting forth elements of Fourteenth Amendment deliberate 4 indifference to medical needs). Although understandably distressing, the 5 possibility that Plaintiff’s cancer could recur is not an injury for constitutional 6 purposes. Plaintiff is not foreclosed from bringing a later action should his cancer 7 in fact return. 8 Regarding Plaintiff’s claim against Defendant Akpati and his Monell claim 9 against Defendant NaphCare, Judge Denney explains that Plaintiff likewise has 10 not shown that any injury has occurred since there is no evidence of injury or 11 harm to Plaintiff due to any alleged delay in treatment of his hepatitis C infection. 12 (ECF No. 91 at 21-22.) Judge Denney notes that Plaintiff’s condition and tested 13 APRI levels instead showed continual improvement and that RNA testing 14 performed on September 12, 2022 and November 9, 2022 showed that Plaintiff 15 no longer had hepatitis C. (Id.) The Court agrees with Judge Denney that Plaintiff 16 has not shown any injury as required for a Fourteenth Amendment deliberate 17 indifference to medical needs claim. Because there is no underlying constitutional 18 violation, NaphCare cannot be liable under Monell v. Department of Social 19 Services, 436 U.S. 658 (1978). See Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 20 1075 (9th Cir. 2016). 21 Regarding Plaintiff’s claim against Defendant Hill for improperly removing 22 the object from Plaintiff’s chest, namely the anchor stitch from the port placed in 23 Plaintiff’s chest for his chemotherapy treatment, Judge Denney states that he 24 “cannot conclude Hill’s decision to remove a stitch that had worked its way out 25 to the skin was objectively unreasonable under the circumstances. There is no 26 evidence that her conduct put Plaintiff at a ‘substantial risk of suffering serious 27 harm.’” (ECF No. 91 at 18 (emphasis in original).) Plaintiff states that the removal 28 of the stitch was unnecessary since it was designed to dissolve on its own, that 1 its removal caused Plaintiff pain and suffering, and that the removal “left a deep 2 hole in Plaintiff[‘s] chest leaving Plaintiff with a big scar that can be seen today.” 3 (ECF No. 92 at 3-4.) 4 For inadequate medical care claims for pretrial detainees, a “serious 5 medical need” is one “such that a failure to treat a prisoner's condition could 6 result in further significant injury or the unnecessary and wanton infliction of 7 pain.” Russell v. Lumitap, 31 F.4th 729, 739 (9th Cir. 2022) (internal quotations 8 omitted). Pretrial detainees are guaranteed a higher standard viz. the Fourteenth 9 Amendment than are convicted prisoners under the Eighth Amendment. See 10 Smith v. Washington, 781 F. App'x 595, 598 (9th Cir. 2019) (directing the district 11 court to consider whether exposure to environmental tobacco smoke violated 12 pretrial detainee’s Fourteenth Amendment rights). The Court disagrees that there 13 is no genuine issue of material fact as to whether Plaintiff has shown injuries 14 “serious” enough for a Fourteenth Amendment claim. A jury should evaluate 15 whether the injuries that allegedly resulted in a permanent scar were “significant” 16 and whether the removal of the stitch constituted “unnecessary and wanton 17 infliction of pain.” The Court therefore adopts the R&R with respect to Plaintiff’s 18 first, third, and fourth claims and reverses the R&R with respect to Plaintiff’s 19 second claim. 21 Plaintiff has filed various objections and motions which remain 22 outstanding, namely: (1) Plaintiff’s objection to the May 5, 2022 order (ECF No. 23 37) denying Plaintiff’s motion for appointment of counsel (ECF No. 42); (2) 24 Plaintiff’s motion for answers from the court on objection to Magistrate (ECF No. 25 48); (3) Plaintiff’s objection to the July 26, 2022 order (ECF No. 50) denying 26 Plaintiff’s motion to extend discovery (ECF No. 51); (4) Plaintiff’s motion for 27 answers and response to objection to Magistrate (ECF No. 93); and (5) Plaintiff’s 28 motion for answers and response to objection to Magistrate (ECF No. 95). Because 1 || Plaintiff filed a subsequent motion for appointment of counsel after Plaintiff filed 2 || his objection to the May 5, 2022 order denying appointment of counsel, and the 3 || Court denied the subsequent motion (ECF No. 89), Plaintiff's objection (ECF No. 4 || 42) is denied as moot. The Court overrules Plaintiffs objection (ECF No. 42) to 5 || the July 26, 2022 order denying Plaintiff's motion to extend discovery because, 6 || as Judge Denney explained, discovery has already been extended in this case. 7 || (See ECF No. 30.) Finally, Plaintiff's three motions for answers from the Court 8 || (ECF Nos. 48, 93, 95) are denied as moot in light of the present order. 9 Having reviewed the R&R and the record in this case, the Court will adopt 10 || the R&R in part and reverse the R&R in part. 11 It is therefore ordered that Judge Denney’s Report and Recommendation 12 || (ECF No. 91) is accepted with respect to Plaintiffs claims relating to his missed 13 || chemotherapy appointment and his lack of hepatitis C treatment and reversed 14 || with respect to Plaintiffs claim relating to the removal of the object from his chest 15 || by Defendant Hill. 16 It is further ordered that Plaintiff's remaining objections and motions (ECF 17 || Nos. 42, 48, 51, 93, 95) are denied for the reasons set forth herein. 18 19 DATED THIS 16t day of March 2023. 20 21 i idan 22 Aru 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28