Nall v. Adamson ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 TYRONE T.H. NALL, Case No. 3:19-cv-00054-MMD-CLB 7 Plaintiff, ORDER v. 8 9 KIM ANDERSON, et al., 10 Defendants. 11 12 I. SUMMARY 13 Pro se Plaintiff Tyrone T.H. Nall, who is an inmate at Lovelock Correctional Center 14 (“LCC”), brings this action under 42 U.S.C. § 1983 against Defendants Romeo Aranas and 15 Michael Minev, the former and current medical directors of the Nevada Department of 16 Corrections (“NDOC”), respectively. (ECF No. 9.) Nall asserts an Eighth Amendment claim 17 for deliberate indifference to a serious medical need. (Id.) Before the Court is a Report and 18 Recommendation (“R&R”) of United States Magistrate Carla L. Baldwin (ECF No. 73), 19 recommending the Court deny both parties’ cross-motions for summary judgment and 20 dismiss Defendant Minev.1 (ECF No. 44 (“Nall’s Motion”); ECF No. 45 (“Defendants’ 21 Motion”).) Both Nall and Defendants filed objections to the R&R.2 (ECF No. 74 (“Nall’s 22 Objection”); ECF No. 75 (“Defendants’ Objection”).) 23 As further explained below, the Court will adopt the R&R in its entirety. Because 24 there is a genuine dispute of fact whether Aranas was deliberately indifferent to Nall’s 25 26 1Defendants responded to Nall’s Motion (ECF No. 55) and Nall replied (ECF No. 68). Nall likewise responded to Defendants’ Motion (ECF No. 66), but Defendants did not 27 reply. 28 2Nall responded to Defendants’ Objection (ECF No. 77), but Defendants did not file a response to Nall’s Objection. 2 Amendment claim. Moreover, because categorical denial of care leading to treatment that 3 is medically unacceptable under the circumstances violates a clearly established right, the 4 Court will also deny Defendants’ Motion as to their qualified immunity argument. Finally, 5 because Nall’s requested relief against Minev is moot, the Court will dismiss him from this 6 action. 7 II. BACKGROUND 8 The Court incorporates by reference Judge Baldwin’s recitation of Nall’s allegations 9 in the FAC provided in the R&R, which the Court adopts. (ECF No. 73 at 1-3.) 10 III. LEGAL STANDARD 11 This Court “may accept, reject, or modify, in whole or in part, the findings or 12 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 13 timely objects to a magistrate judge’s report and recommendation, then the Court is 14 required to “make a de novo determination of those portions of the [report and 15 recommendation] to which objection is made.” Id. The Court’s review is thus de novo 16 because the parties objected. (ECF No. 74, 75.) 17 “The purpose of summary judgment is to avoid unnecessary trials when there is no 18 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 19 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate when 20 the pleadings, the discovery and disclosure materials on file, and any affidavits “show 21 there is no genuine issue as to any material fact and that the movant is entitled to judgment 22 as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is 23 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 24 find for the nonmoving party and a dispute is “material” if it could affect the outcome of the 25 suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 26 (1986). Where reasonable minds could differ on the material facts at issue, however, 27 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 28 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 2 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 3 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and 4 draws all inferences in the light most favorable to the nonmoving party. See Kaiser Cement 5 Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation omitted). 6 The moving party bears the burden of showing that there are no genuine issues of 7 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 8 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 9 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 10 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 11 but must produce specific evidence, through affidavits or admissible discovery material, to 12 show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 13 1991), and “must do more than simply show that there is some metaphysical doubt as to 14 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 16 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” 17 Anderson, 477 U.S. at 252. 18 IV. DISCUSSION 19 Nall objects to the denial of his Motion and the denial of his request for injunctive 20 relief against Minev. (ECF No. 74 at 2-4.) Defendants object solely to the denial of 21 summary judgment on their qualified immunity argument. (ECF No. 75 at 5.) The Court 22 will first address Nall’s Objection to the denial of his Motion, then will consider Defendants’ 23 Objection to the denial of their qualified immunity argument. Finally, the Court will address 24 Nall’s Objection to the dismissal of Defendant Minev. 25 A. Eight Amendment Claim 26 Judge Baldwin concluded that there is a genuine dispute about whether 27 Defendants’ conduct violated the Eighth Amendment, and therefore both parties’ Motions 28 should be denied. (ECF No. 73 at 7-8.) Defendants did not object to Judge Baldwin’s 2 Motion de novo. 3 In the Ninth Circuit, courts use a two-part test to analyze Eighth Amendment 4 deliberate indifference claims. A plaintiff must satisfy “both an objective standard—that the 5 deprivation was serious enough to constitute cruel and unusual punishment—and a 6 subjective standard—deliberate indifference.” Colwell v. Bannister, 763 F.3d 1060, 1066 7 (9th Cir. 2014) (internal quotation omitted). A plaintiff demonstrates a serious medical need 8 by showing that “failure to treat a prisoner’s condition could result in further significant 9 injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 10 1096 (9th Cir. 2006) (internal quotations omitted). “Prison officials are deliberately 11 indifferent to a prisoner’s serious medical needs when they deny, delay, or intentionally 12 interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002). A 13 defendant official’s mere negligence does not give rise to a deliberate indifference claim— 14 instead, something akin to recklessness, “between the poles of negligence at one end and 15 purpose or knowledge at the other,” is required. Farmer v. Brennan, 511 U.S. 825, 836 16 (1994). 17 “In cases involving ‘choices between alternative courses of treatment,’ plaintiff 18 ‘must show that the course of treatment the doctors chose was medically unacceptable 19 under the circumstances’ and that ‘they chose this course in conscious disregard of an 20 excessive risk to plaintiff’s health.’” Gordon v. Cnty. of Orange, 6 F.4th 961, 971 (9th Cir. 21 2021) (internal citation omitted). “A difference of opinion between a prisoner-patient and 22 prison medical authorities regarding treatment does not give rise to a § 1983 claim.” 23 Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981). However, 24 it is “well settled that prison officials violate the Constitution when they choose a course of 25 treatment that is ‘medically unacceptable under all of the circumstances.’” Gordon, 6 F.4th 26 at 971 (internal citation omitted). Indeed, the Ninth Circuit has held that a “blanket, 27 categorical denial” of treatment “solely on the basis of an administrative policy . . . is the 28 paradigm of deliberate indifference.” Colwell, 763 F.3d at 1063. 2 be genuinely in dispute. Indeed, as Judge Baldwin notes, “the existence of chronic and 3 substantial pain” is a serious medical need, Colwell, 763 F.3d at 1066 (citation omitted), 4 and failure to treat conditions like neuropathy can lead to unnecessary and wanton 5 infliction of pain contrary to contemporary standards of decency. (ECF No. 73 at 7-8.) 6 Defendants argue instead that because Nall was prescribed alternative medications— 7 including ibuprofen, NSAIDs, and ultimately Oxycodone—which eventually reduced his 8 pain and permitted him to work, he cannot show that the course of treatment evinced 9 deliberate indifference to his pain. (ECF No. 45 at 4.) It is undisputed that in December 10 2016, Aranas issued a memorandum advising medical staff that Neurontin “was no longer 11 formulary.” (ECF Nos. 9 at 7, 45 at 3.) Nall argues that this decision was made for purely 12 financial reasons and resulted in his increased symptomatic pain for several years. (ECF 13 No. 44 at 3.) Nall concludes that Aranas’ decision to discontinue the use of Neurontin 14 NDOC-wide without providing guidance for prescribing replacement medication to treat 15 neuropathy and chronic pain evinced deliberate indifference to his serious medical need. 16 (Id. at 19-20.) Judge Baldwin reasons that summary judgment is not appropriate for either 17 party because this subjective element of the analysis was genuinely in dispute. (Id. at 8.) 18 The Court agrees with Judge Baldwin’s conclusion that a reasonable finder of fact 19 could find that Aranas deliberately instituted a categorically applicable policy that was 20 medically inappropriate under all the circumstances because it resulted in the wanton 21 infliction of pain on Nall. On the other hand, viewed in the light most favorable to 22 Defendants, a reasonable finder of fact could conclude that Aranas was not deliberately 23 indifferent to Nall’s serious medical needs, as Nall’s was prescribed replacement 24 medication which improved his overall health and decreased his pain. Whether Aranas 25 acted with deliberate indifference to Nall’s serious medical need is therefore genuinely in 26 dispute. Accordingly, neither party has met their burden that they are entitled to judgement 27 as a matter of law on Nall’s Eighth Amendment claim. Nall’s Objection is therefore 28 overruled, and the Court will deny both motions for summary judgment the merits of Nall’s 2 B. Qualified Immunity 3 Judge Baldwin also rejected Defendants’ argument that they are entitled to 4 summary judgment based on qualified immunity. (ECF No. 73 at 9-10.) Because it is 5 clearly established constitutional law that prison officials violate the Eighth Amendment by 6 implementing categorical medical policies that fail to provide acceptable medical care, 7 Judge Baldwin found that Defendants are not entitled to summary judgment on qualified 8 immunity based on the facts of this case. (Id. at 10.) Defendants objected, arguing that the 9 facts do not support that the course of treatment in this case was medically unacceptable 10 and there is no clearly established law that would have put them on notice that the chosen 11 medical treatment was unconstitutional. (ECF No. 75 at 5.) 12 “In determining whether a state official is entitled to qualified immunity in the context 13 of summary judgment, [courts] consider (1) whether the evidence viewed in the light most 14 favorable to the plaintiff is sufficient to show a violation of a constitutional right and (2) 15 whether that right was ‘clearly established at the time of the violation.’” Sandoval v. Cnty. 16 of San Diego, 985 F.3d 657, 670 (9th Cir. 2021) (quoting Horton by Horton v. City of Santa 17 Maria, 915 F.3d 592, 592 (9th Cir. 2019)). “Whether a constitutional right is clearly 18 established is purely a question of law for the court to decide.” Gordon, 6 F.4th at 968. 19 But a defendant is not entitled to qualified immunity “simply because ‘the very action 20 in question has [not] previously been held unlawful.’” Sandoval, 985 F.3d at 680 (quoting 21 Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “State ‘[o]fficials can still be on notice that their 22 conduct violates established law even in novel factual circumstances’—i.e., even without 23 a prior case that had ‘fundamentally similar’ or ‘materially similar’ facts.’” Id. (internal 24 citations omitted). “The [individual defendant’s] actual subjective appreciation of the risk is 25 not an element of the established-law inquiry.” Id. at 678. When a reasonable jury could 26 conclude that state officials acted with deliberate indifference to a serious medical need, 27 summary judgment on qualified immunity is not appropriate. See id. at 665. 28 Defendants argue in their Objection that Nall was required to provide precedent 2 caselaw holds otherwise. See Gordon, 6 F.4th at 969 (“[B]ecause resolving whether the 3 asserted federal right was clearly established presents a pure question of law, we draw 4 on our ‘full knowledge’ of relevant precedent rather than restricting our review to cases 5 identified by the plaintiff.”) (quoting Elder v. Holloway, 510 U.S. 510, 516 (1994)). The 6 Court therefore considers law which clearly established when Aranas issued the 7 memorandum revoking the use of Neurontin, irrespective of whether Nall cited to it directly. 8 At the time Aranas issued the memorandum, Colwell v. Bannister had been circuit law for 9 almost two years. See 763 F.3d 1060 (9th Cir. 2014). The Ninth Circuit expressly stated 10 in Colwell that “the blanket, categorical denial of medically indicated surgery solely on the 11 basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the 12 paradigm of deliberate indifference.” Id. at 1063. In the time after Colwell but before Aranas 13 issued the memorandum, several district courts in this circuit relied on that exact language, 14 including in a case in this district in which medical treatment at NDOC was at issue. See, 15 e.g., Brodsky v. Atwood, Case No. 3:16-cv-00023-MMD-WGC, 2016 WL 3921142, at *1 16 (D. Nev. Jul. 20, 2016). The Court therefore finds that it was—and remains—settled law 17 that denial of treatment based on a categorical policy constitutes deliberate indifference to 18 a serious medical need when that policy provides unacceptable medical care under all of 19 the circumstances. 20 Defendants next argue that this precedent is insufficiently specific to put them on 21 notice that their actions violated clearly established constitutional rights. (ECF No. 75 at 22 5-8.) But Defendants’ attempt to distinguish the holding in Colwell v. Bannister3 creates an 23 illusory distinction crafted from a standard that is “too particular” and which risks “defin[ing] 24 away all potential claims.” See Gordon, 6 F.4th at 969 (internal citation omitted). 25 26 3Defendants also attempt to distinguish Toguchi v. Chung, 391 F.3d 1051 (9th Cir. 2004). (ECF No. 75 at 7.) However, Judge Baldwin relied on Toguchi only for the general 27 proposition that “it is settled law that choosing a course of treatment that is medically unacceptable under the circumstances and is chosen in conscious disregard of an 28 excessive risk to an inmate’s health is a constitutional violation,” a rule that is not in dispute, even in Defendants’ Objection. (ECF No. 73 at 10.) 2 pursuant to NDOC policy, but rather was given “an alternative treatment plan.” (ECF No. 3 75 at 7.) But to limit the rule in Colwell only to circumstances in which treatment is denied 4 outright, instead of including circumstances in which treatment is delayed or intentionally 5 interfered with, runs counter to this Circuit’s precedent. See Hallett, 296 F.3d at 744 6 (explaining various ways in which insufficient medical care could violate the Eighth 7 Amendment). Moreover, Nall argues that the substitute treatment was effectively a denial 8 of treatment because the replacement medications did not provide him “meaningful pain 9 management.” (ECF No. 44 at 20.) While it is true that whether the replacement 10 medications were effectively a denial of treatment remains factually in dispute, for 11 purposes of Defendants’ Motion on qualified immunity that dispute must be viewed in the 12 light most favorable to Nall. Even if substitution of medication could not be considered a 13 denial of effective treatment, prescribing a substitute medication which does not alleviate 14 pain when the sole purpose of prescribing medication at all is pain management clearly 15 constitutes interfering with appropriate treatment. Because it is clearly established that 16 failing to treat a serious medical need based solely on an administrative policy constitutes 17 deliberate indifference, it would not be appropriate to grant summary judgment on 18 Defendants’ qualified immunity defense. 19 C. Injunctive Relief Against Minev 20 Judge Baldwin recommends granting summary judgment on Nall’s claim for 21 injunctive relief against Defendant Minev because that remedy is moot. (ECF No. 73 at 22 10.) Nall states in his Motion that Minev added Neurontin and Lyrica back to NDOC’s 23 formulary. (ECF No. 44 at 23.) Because the only relief Nall requests respecting Minev is 24 injunctive, Judge Baldwin recommends Minev be dismissed. (ECF No. 73 at 11.) Nall 25 argues in his Objection that dismissal of Minev is premature because NDOC doctors may 26 reduce his dosage at any time, creating a problem that is capable of repetition. (ECF No. 27 74 at 4-5.) The Court appreciates Nall’s concerns, but as Nall argues in his Objection, any 28 changes regarding his prescription dosages are treatment choices made by NDOC 1 || doctors based on what they consider his medical treatment requires, separate and apart 2 || from whether Neurontin or Lyrica are listed as formulary. Insofar as Nall is asserting that 3 || the doctors changing his prescription dosages would constitute an Eighth Amendment 4 || violation similar to the violation he asserts in the FAC, that decision would arise out of a 5 || separate set of facts than those alleged in the FAC. 6 Because the relief Nall could obtain from Minev has already been provided, the 7 || Court finds that Nall’s claim against him is moot. 8 || V. CONCLUSION 9 The Court notes that the parties made several arguments and cited to several cases 10 || not discussed above. The Court has reviewed these arguments and cases and determines 11 || that they do not warrant discussion as they do not affect the outcome of the issues before 12 || the Court. 13 It is therefore ordered that Nall’s objection (ECF No. 74) to Judge Baldwin’s Report 14 || and Recommendation is overruled. 15 It is further ordered that Defendants’ objection (ECF No. 75) to Judge Baldwin’s 16 || Report and Recommendation is overruled. 17 It is further ordered that Judge Baldwin’s Report and Recommendation (ECF No. 18 || 73) is adopted in full. 19 lt is further ordered that Nall’s motion for summary judgment (ECF No. 44) is 20 || denied. 21 It is further ordered that Defendant’s motion for summary judgment (ECF No. 45) 22 || is denied in part, as stated herein. 23 It is further ordered that Nall’s claim against Defendant Michael Minev is dismissed 24 || as moot. Minev is therefore dismissed from this action. 25 DATED THIS 22" Day of October 2021. 27 MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE