Welch v. Minev

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 KENTRELL WELCH, ) 4 ) Plaintiff, ) Case No.: 2:19-cv-01064-GMN-BNW 5 vs. ) ) ORDER 6 MICHAEL MINEV et al., ) 7 ) Defendant. ) 8 )

9 10 Pending before the Court are Defendants Gregory Bryant, Alberto Buencamino, Louie 11 Gallo, Michael Minev, Jennifer Nash, Charles Paternostro, and Brian William’s (collectively 12 “Defendants’”) Motion for Summary Judgment, (ECF No. 156). Plaintiff Kentrell Welch 13 (“Plaintiff”) filed a Response, (ECF No. 186), to which Defendants filed a Reply, (ECF No. 14 190). 15 For the reasons discussed below, the Court GRANTS Defendants’ Motion for Summary 16 Judgment. 17 I. BACKGROUND 18 This case arises out of Defendants’ alleged indifference to Plaintiff’s serious medical 19 needs while he was incarcerated at High Desert State Prison (“HDSP”).1 (See generally Am. 20 Compl., ECF No. 8). Plaintiff alleges he has suffered from hyperthyroid chronic disease from 21 2014 to the present. (Am. Compl. at 6). This disease occurs when the thyroid glad 22 malfunctions. (Id.). Plaintiff’s hyperthyroid disease causes him to suffer form severe weight 23

24 1 Plaintiff sues Defendants NDOC Director Michael Minev (“Dr. Minev”), Doctor Gregory Bryant (“Dr. 25 Bryant”), Correctional Officer (“C/O”) Louie Gallo (“C/O Gallo”), C/O Charles Paternostro (“C/O Paternostro”), Tito Buenocamino (“Buenocamino”), Warden Brian Williams (“Warden Williams”), and Associate Warden Jennifer Nash (“Associate Warden Nash”). (Am. Compl. at 2–4, ECF No. 8). 1 loss, insomnia, diarrhea, vertigo, severe headaches, and constant throat pain. (Id.). In 2017, 2 while at HDSP, Plaintiff almost suffered from a coma due to severe malnutrition and weight 3 loss. (Id.). Plaintiff suffered day and night form a “numbing burning pain sensation.” (Id.). 4 Plaintiff requested a hematology blood panel to test for carpal tunnel, rheumatism, rheumatoid 5 arthritis, or neuritis in order to test for an alternative chronic disease. (Id.). Plaintiff alleges, 6 however, that Dr. Bryant and Dr. Minev ignored the request. (Id.). Plaintiff further alleges that 7 Dr. Bryant told him to let his thyroid condition burn itself out. (Id. at 7). At another 8 appointment, Dr. Bryant allegedly denied Plaintiff thyroid throat surgery because Dr. Minev 9 told Dr. Bryant to deny surgeries due to budgeting issues. (Id.) 10 On June 27, 2019, while Plaintiff was at a medical appointment, C/O Gallo and C/O 11 Paternostro intervened when they told the doctor it was “count time” and that Plaintiff had to 12 go back to his housing unit. (Id.) Usually, when an inmate had a medical visit during count, the 13 C/Os conducted an “outcount” and permitted inmates to go back to their medical appointments 14 after the count ended. (Id.) However, when Plaintiff requested this procedure, C/O Paternoster 15 and C/O Gallo threatened to pepper spray and put Plaintiff down. (Id.) 16 Plaintiff alleges Dr. Bryant and the other medical staff knew about Plaintiff’s condition 17 because they witnessed him hobble through the facility. (Id.) Plaintiff maintains that Dr. 18 Bryant watched Plaintiff's condition deteriorate for several years but continued to ignore 19 Plaintiff's requests to seek outside treatment. (Id.) Dr. Bryant stated that he did not see 20 anything in the labs or charts that were causing Plaintiff's symptoms and complications. (Id.). 21 Plaintiff asserts Dr. Bryant, Dr. Minev, Warden Williams, Associate Warden Nash, C/O

22 Gallo, and C/O Paternoster ignored Plaintiff's daily suffering. (Id. at 8). Plaintiff alleges that 23 Dr. Bryant and Dr. Minev failed to intervene and permit Plaintiff to see a different nurse after 24 the nurse who was conducting Plaintiff's blood draw was incompetent as evidenced by her 25 “multiple needle poking.” (Id.) Plaintiff notified the wardens about his chronic condition 1 complaints, but they failed to provide chronic care treatment to Plaintiff. (Id.) On August 7, 2 2019, a hematology panel analyzed Plaintiff's blood lab and concluded that Plaintiff has been 3 dually suffering from hyperthyroid condition and rheumatoid arthritis. (Id. at 9). 4 Plaintiff filed the instant action on August 6, 2019. (Compl., ECF No. 6). On August 16, 5 2019, Plaintiff filed his first Amended Complaint, alleging that pursuant to 42 U.S.C. § 1983, 6 Defendants deliberate indifference to his serious medical conditions violated his Eighth 7 Amendment rights. (Am. Compl. at 6). On October 19, 2021, Defendants filed a Motion for 8 Summary Judgment. (Mot. Summ. J. (“MSJ”), ECF No. 156). 9 II. LEGAL STANDARD 10 The Federal Rules of Civil Procedure provide for summary adjudication when the 11 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 12 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 13 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 14 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 15 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 16 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 17 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 18 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral 19 Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 20 253, 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 21 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s

22 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United 23 States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary 24 judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 25 477 U.S. 317, 323–24 (1986). 1 In determining summary judgment, a court applies a burden-shifting analysis. “When 2 the party moving for summary judgment would bear the burden of proof at trial, it must come 3 forward with evidence which would entitle it to a directed verdict if the evidence went 4 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 5 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 6 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 7 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 8 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 9 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 10 party failed to make a showing sufficient to establish an element essential to that party’s case 11 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 12 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 13 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 14 398 U.S. 144, 159–60 (1970). 15 If the moving party satisfies its initial burden, the burden then shifts to the opposing 16 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 17 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 18 the opposing party need not establish a material issue of fact conclusively in its favor. It is 19 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 20 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 21 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on

22 denials in the pleadings but must produce specific evidence, through affidavits or admissible 23 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 24 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 25 doubt as to the material facts.” Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) 1 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the 2 plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the 3 nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations 4 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 5 Instead, the opposition must go beyond the assertions and allegations of the pleadings and set 6 forth specific facts by producing competent evidence that shows a genuine issue for trial. See 7 Celotex Corp., 477 U.S. at 324. 8 At summary judgment, a court’s function is not to weigh the evidence and determine the 9 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 10 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 11 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 12 not significantly probative, summary judgment may be granted. See id. at 249–50. 13 Fed. R. Civ. P. 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration 14 that, for specified reasons, it cannot present facts essential to justify its opposition, the court 15 may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or 16 declarations or to take discovery; or (3) issue any other appropriate order.” To obtain relief 17 under Rule 56(d), the nonmovant must show “(1) that [he or she] ha[s] set forth in affidavit 18 form the specific facts that [he or she] hope[s] to elicit from further discovery, (2) that the facts 19 sought exist, and (3) that these sought-after facts are ‘essential to resist the summary judgment 20 motion.” State of Cal. v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). 21 III. DISCUSSION

22 As a preliminary matter, Defendants argue that they are entitled to summary judgment 23 because Plaintiff failed to exhaust his administrative remedies for the grievances alleged in this 24 suit. (MSJ 7:24–9:24). Plaintiff, in rebuttal, asserts that he did not have to fully exhaust the 25 1 administrative grievance procedure because the prison’s administrative remedy was effectively 2 unavailable to him. (Resp. 7:1–10:9). 3 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 4 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 5 prisoner confined in any jail, prison, or other correctional facility until such administrative 6 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement in 7 prisoner cases is mandatory. Woodford v. Ngo, 548 U.S. 81, 84 (2006). Further, the PLRA 8 requires “proper exhaustion” of administrative remedies. Id. at 93. Proper exhaustion “means 9 that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of 10 the issues.” Griffin v. Arpaio, 557 F.3d 1117, 1119–20 (9th Cir. 2009). 11 Courts should decide exhaustion before examining the merits of a prisoner’s claim. 12 Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). The defendant bears the initial burden to 13 show that there was an available administrative remedy, and that the prisoner did not exhaust it. 14 Id. at 1169, 1172. Once that showing is made, the burden shifts to the prisoner, who must 15 either demonstrate that he, in fact, exhausted administrative remedies “or come forward with 16 evidence showing that there is something in his particular case that made the existing and 17 generally available administrative remedies effectively unavailable to him.” Id. at 1172. The 18 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate if the 19 undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to 20 exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 21 Defendants’ Motion for Summary Judgment includes a copy of the NDOC

22 Administrative Regulation (“NDOC AR”) 740, entitled “Inmate Grievance Procedure,” which 23 catalogs the administrative remedies and associated procedures available to NDOC inmates. 24 (Ex. D to MSJ, ECF No. 156-1). For a plaintiff to exhaust available remedies, NDOC AR 740 25 first requires the inmate to either discuss the issue with a staff member or submit an inmate 1 request form prior to initiating the grievance process. Id. at 740.08(1). For claims regarding 2 medical issues, the procedure continues as follows: (1) an Informal Grievance, which is 3 “responded to by a charge nurse or designee of the Director of Nursing,” Id. at 740.08; (2) a 4 First-Level Grievance appealing the Informal Grievance decision to the “highest level of 5 Nursing Administration,” Id. at 740.09; and (3) a Second-Level Grievance, which is decided by 6 the Medical Director, Id. at 740.10. “An inmate whose grievance is denied in its entirety may 7 appeal the grievance to the next level . . . unless the action requested has already been Granted 8 at a lower level.” Id. at 740.03(6). An inmate may appeal a grievance of any level to the 9 following level within five days after the return of a decision. Id. at 740.08(12)(A), 10 740.09(5)(A). However, the grievance process is complete once a grievance is granted at any 11 level; an inmate cannot appeal a granted grievance. Id. at 740.03(6)(C). 12 An inmate need not exhaust when circumstances render administrative remedies 13 “effectively unavailable.” Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010). In Ross v. 14 Blake, the Supreme Court articulated that an inmate was only required to exhaust those 15 grievance procedures “that are capable of use to obtain some relief for the action complained 16 of.” 578 U.S. 632, 643 (2016). Ross provided a non-exhaustive list of circumstances where 17 administrative remedies was not capable of use: (1) where the procedure “operates as a simple 18 dead end” because officers are “unable or consistently unwilling to provide any relief to 19 aggrieved inmates”; (2) when the administrative scheme is “so opaque that it becomes, 20 practically speaking, incapable of use” because “no ordinary prisoner can discern or navigate 21 it”; and (3) when prison administrators “thwart inmates from taking advantage of a grievance

22 process through machination, misrepresentation, or intimidation.” Id. at 643–44. 23 /// 24 /// 25 /// 1 Defendants argue that Plaintiff failed to exhaust his administrative remedies prior to 2 filing this case.2 Plaintiff’s claim relies on five grievances he filed. (See Ex. C. to MSJ, ECF 3 No. 158-2 Grievance Nos. 20063088376,. 20063085873, 20063085640 20063084218. 4 2006306063). In regards to the first grievance number 20063088376, Plaintiff did not appeal 5 the Informal Grievance decision. (Id.). As to the second grievance number 20063085873, 6 Plaintiff did not appeal the Informal Grievance decision. (Id.). The third grievance number 7 20063085640, Plaintiff again did not appeal the Informal Grievance decision. (Id.). Plaintiff 8 did timely appeal the fourth grievance number 20063084218, but he appealed the Informal 9 Grievance only to the First Level Grievance. (Id.). When the First Level Grievance was denied, 10 Plaintiff did not appeal that decision to the Second Level Grievance. (Id.). The fifth grievance 11 number 2006306063, Plaintiff again timely appealed the Informal Grievance to the First Level 12 Grievance. However, when the First Level Grievance was denied, Plaintiff did not appeal that 13 decision to the Second Level Grievance. (Id.). Defendants assert that Plaintiff’s failure to 14 proceed through the full three-level process in any of the grievances demonstrates Plaintiff’s 15 failure to exhaust. See Booth v. Churner, 532 U.S. 731, 739 (2001). The Court finds that 16 Defendants have met their initial burden of showing that there was an available administrative 17 remedy which Plaintiff did not exhaust. Albino, 747 F.3d at 1169, 1172. The burden now shifts 18 to Plaintiff to produce evidence demonstrating that these remedies were effectively unavailable 19 to him before he filed this suit. Id. at 1172. 20 Plaintiff argues that “prison officials have been unable or unwilling to consistently 21 provide him relief when he has filed grievances.” (Resp. 7:11–13). Plaintiff further asserts that

23 2 Plaintiff alleges that his claims extend back to 2014. AR 740.05(4)(A) specifies that an inmate must file an 24 informal grievance within six months if the issue involves “personal injury, medical claims or any other tort claims, including civil rights claims.” Id. Plaintiff was required to file an informal grievance within six months 25 of any incident. Accordingly, Plaintiff’s claims which were not part of the grievances he filed before initiating this suit are barred as untimely. 1 the “grievance procedures have been opaque because the prison officials have created a 2 convoluted maze of requirements and deadlines . . . .” (Id. 7:13–16). The former does not 3 provide evidence of how Defendants have thwarted Plaintiff’s efforts to utilize the 4 administrative grievance procedure; instead, it expresses dissatisfaction with the results of the 5 procedure. See Soremukun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) 6 (“Conclusory statements, speculative opinions, . . ., or other assertions uncorroborated by facts 7 are insufficient to establish a genuine dispute.”). The latter restates the legal standard. See 8 Ross, 578 U.S. at 643–44. It merely concludes that Plaintiff has been unable to navigate the 9 administrative grievance procedure without explaining how and why. (Id.). 10 Moreover, Plaintiff notes that NDOC AR has “undergone some changes during the 11 period of September 2014 and November 2018.” (Resp. 10:1–5). Plaintiff contends that these 12 changes “at least cast some doubt on the transparency of the grievance process” and Plaintiff’s 13 ability to navigate the process. (Id.). However, Plaintiff cannot avoid summary judgment by 14 relying solely on conclusory allegations that are unsupported by factual data. Taylor, 880 F.2d 15 at 1045. Plaintiff’s counsel has failed to explain how these changes affected Plaintiff’s ability 16 to exhaust his administrative remedies. To the contrary, Plaintiff continued to file many 17 grievances even after the changes to the NDOC AR in 2018, including filing fifteen in just 18 2020.3 (See Ex. C to MSJ, 158-1 Grievance Nos. 20063099561, 20063098848, 20063098615, 19

20 3 Plaintiff’s counsel also notes that Plaintiff alleged in his first Complaint that people have “expressed 21 bewilderment as to why medical won’t treat him.” (Resp. 7:22–25). It is unclear to the Court how this stand- alone allegation tends to show either that prison officials have thwarted Plaintiff’s attempt to utilize the 22 grievance process or that the grievance process is an unworkable maze for Plaintiff. The same holds true for Plaintiff’s arguments that there may have “potential issues of dispute how the officials explained the process to 23 [Plaintiff],” (Resp. 7:16–22), and that there were “improprieties regarding getting the grievance paperwork.” (Resp. 9:23–28). Absent from the first statement is any indication of how the process was explained to Plaintiff 24 and any concrete examples of how it interfered with Plaintiff’s ability to complete the grievance process. The second is devoid of any examples or explanation of Defendants depriving Plaintiff of the necessary paperwork. 25 As previously mentioned, the numerous grievance reports filed by Plaintiff suggest that he had no problem navigating the administrative grievance procedure or received any needed paperwork to file grievances. 1 20063098349, 2006309813, 20063098161, 20063098068, 20063097580, 20063097426, 2 20063097092, 20063096824, 20063096134, 20063096032, 20063095219, and 20063094888). 3 Accordingly, because Plaintiff failed to demonstrate that administrative remedies were 4 effectively unavailable to him, his claim must be denied for failure to exhaust.4 As such, the 5 Court grants summary judgment in favor of Defendants. 6 IV. CONCLUSION 7 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, (ECF 8 No. 156), is GRANTED. It is FURTHER ORDERED that Plaintiff’s Motion to Re-open 9 Discovery, (ECF No. 219), Motion for Temporary Restraining Order, (ECF No. 221), Motion 10 for Preliminary Injunction, (ECF No. 245), and Motion of Affirmative Defenses Objections, 11 (ECF No. 228), are DENIED as moot. 12 DATED this __7___ day of October, 2022. 13 14 ___________________________________ Gloria M. Navarro, District Judge 15 UNITED STATES DISTRICT COURT 16 17 18 19 20 21 4 Plaintiff argues that under Jones v. Bock, his entire case should not be dismissed because there are both exhausted and unexhausted claims. 549 U.S. 199, 221–22 (2007) (concluding that the failure to exhaust 22 administrative remedies for one claim does not mandate dismissal of other, exhausted claims in the same lawsuit); (Resp. 8:4–17). However, Plaintiff fails to identify which of his claims, if any, are exhausted. Although 23 Plaintiff identifies an Emergency Grievance that was submitted on June 27, 2019, (Resp. 9:16–22), Plaintiff fails to demonstrate that the grievance procedure was properly exhausted through the grievance process’ three 24 mandatory levels. Indeed, records show Plaintiff did not appeal the Informal Grievance decision. (Ex. C to MSJ, 158-2 Grievance No. 20063085640). Alternatively, Plaintiff does not state why is failure to exhaust should be 25 excused. The same reasoning applies to the November 30, 2016, Emergency Grievance cited by Plaintiff. (Resp. 8:26–9:4).