Mizzoni v. Bauman ( 2015 )

 ORDER OF AFFIRMANCE
This is a pro se appeal from a district court summary
judgment in a civil rights action. 1 Seventh Judicial District Court, White
Pine County; Miriam Shearing, Judge.
This court reviews de nova whether the district court properly
granted summary judgment. Wood v. Safeway, Inc,, 121 Nev. 724, 729,
121 P.3d 1026, 1029 (2005). "Summary judgment is appropriate. . . when
the pleadings and other evidence on file demonstrate that no genuine
issue as to any material fact remains and that the moving party is entitled
to a judgment as a matter of law." Id, (internal quotation and alteration
omitted). In opposing summary judgment, the nonmoving party must "do
more than simply show that there is some metaphysical doubt as to the
operative facts." Id. at 732, 121 P.3d at 1031 (internal quotation omitted).
Having considered appellant's pro se appeal statement,
respondents' response, and appellant's reply, 2 we conclude that the district
court properly granted summary judgment on all of appellant's claims
with respect to all respondents. As for appellant's Eighth Amendment
claims relating to excessive force during the March 5, 2007, incident and
the November 6, 2007, incident, the district court viewed the videotape of
'Although the district court purported to dismiss several of
appellant's claims under NRCP 12(b)(5), the district court relied on
matters outside of the pleadings in adjudicating those claims.
Accordingly, we construe the entirety of the appealed order as an order
granting summary judgment. See Witherow v. Bd. of Parole Comm'rs, 123
Nev. 305, 307-08, 167 P.3d 408, 409 (2007).
2 Because appellant's January 2, 2015, motion to respond and object
does not seek relief from this court, we construe that filing as a reply to
respondents' response. Accordingly, no further action needs to be taken
with regard to that document.
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those incidents and concluded that appellant's recollection of those
incidents was "belied by the videotape." Accordingly, we conclude that
summary judgment was proper as to appellant's Eighth Amendment
excessive-force claims. 3
As for appellant's Eighth Amendment claims relating to
inadequate medical treatment, the district court properly concluded that
no questions of material fact existed as to whether respondents were
deliberately indifferent to appellant's serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106 (1976). As the district court's order reflects,
consideration of these claims was made difficult due in large part to
appellant's failure to clearly identify a specific "serious medical need" that
he believed was being deliberately ignored. At best, appellant points to an
allegedly fractured rib that respondents refused to x-ray for 22 months.
The district court concluded, however, that evidence in the record
demonstrated that appellant received an x-ray within a month of the
alleged rib fracture and a follow-up x-ray that revealed no fracture.
Accordingly, we agree with the district court's conclusion that appellant
failed to demonstrate a genuine issue of material fact as to whether
respondents were deliberately indifferent to a serious medical need.
Wood, 121 Nev. at 732, 121 P.3d at 1031.
As for appellant's claims regarding unsanitary conditions, the
district court properly determined that no Eighth Amendment violation
occurred. Importantly, appellant does not contend that all of the water in
3 Tothe extent that appellant contends that excessive force was used
on him in his caseworker's office at the beginning of the March 5, 2007,
incident, we conclude that even under appellant's version of events, that
force was not inflicted "maliciously and sadistically for the very purpose of
causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (internal
quotation omitted).
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his cell was shut off at any point in time—only that his toilet was shut off
for four days, or that the cold water for his sink was shut off for seventeen
days. Thus, we agree that this conduct does not rise to the level of an
Eighth Amendment violation. 4 See Anderson v. Cnty. of Kern, 45 F.3d
1310, 1314-15 (9th Cir. 1995) (summarizing the types of prison conditions
that have amounted to an Eighth Amendment violation).
Finally, as for appellant's claim regarding an alleged due
process violation, the district court properly granted summary judgment
based on the conclusion that appellant did not have a protected liberty
interest in remaining free from segregated confinement. See Sandin v.
Conner, 515 U.S. 472, 486 (1995) ("[D]iscipline in segregated confinement
[does] not present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest."). In light of the
foregoing, we
ORDER the judgment of the district court AFFIRMED. 5
Parraguirre
r •
Ovut.
Cherry
, J.
Douglas
4Similarly, because respondents shut off appellant's water only in
response to appellant's disruptive conduct, summary judgment was proper
as to appellant's claim for intentional infliction of emotional distress.
Maduike v. Agency Rent-A-Car, 114 Nev. 1, 4, 953 P.2d 24, 26 (1998)
(recognizing that such a claim requires the plaintiff to establish that the
defendant's conduct was "outside all possible bounds of decency" and was
"utterly intolerable in a civilized community" (internal quotations
omitted)).
We have considered appellant's remaining arguments on appeal
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and conclude that they do not warrant reversal of the appealed order.
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cc: Hon. Miriam Shearing, Senior Justice
Joseph L. Mizzoni
Attorney General/Carson City
White Pine County Clerk
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