Robert Gardner v. Lvmpd ( 2020 )

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NOT FOR PUBLICATION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.
3