Thomas v. Hanf

1

MARLO D. THOMAS, Plaintiff v. TED HANF, et al., Defendants

No. 3:20-cv-00487-MMD-CSD

United States District Court, D. Nevada

October 28, 2022

REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 31

Craig S. Denney, United States Magistrate Judge.

This Report and Recommendation is made to the Honorable Miranda M Du, Chief United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice LR 1B 1-4.

Before the court is Defendants' motion for summary judgment. (ECF Nos. 31, 31-1 to 31-6, 33, 34-1 to 34-6.) Plaintiff filed a response. (ECF No. 37, 38.) Defendants did not file a reply.

After a thorough review, it is recommended that Defendants' motion be denied.

I. BACKGROUND

Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 6.) The events giving rise to this action took place while Plaintiff was housed at Ely State Prison (ESP). (Id.)

The court screened Plaintiff's complaint and allowed him to proceed with claims for deliberate indifference to his serious medical needs under the Eighth Amendment against Nurse Luchessi and Dr. Hanf. (ECF No. 5.)

Plaintiff alleges that he was involved in a fight with another inmate on March 11, 2019, and after the fight he noticed his fingers were crooked and bleeding. He was sent to the infirmary, and he informed defendant Nurse Luchessi that his fingers were broken and he was in pain. Luchessi responded that it was obvious, but there was nothing she could do that night as ESP did not have the equipment. Plaintiff told her that he needed to go to the hospital, and she responded that it would cost him a lot of money and they would put a freeze on his prison account. Instead, she said she spoke with the prison provider, and the best she could do was to wash the blood off and wrap his fingers, but he would not receive medication or an x-ray. Plaintiff told Luchessi he was in pain, at a level of ten out of ten, and he needed to go to the hospital to see a doctor; however, Luchessi did not respond, and Plaintiff was escorted out of the room.

Plaintiff avers that he was in the infirmary for two and a half days, but he was not seen by medical staff. When he returned to his unit on March 13, 2019, he sent a medical kite. On March 27, 2019, he sent another medical kite after he had learned to write with his left hand. On March 28, 2019, Plaintiff claims he was served with the notice of charges regarding the altercation, and the officer stopped the hearing and contacted medical when he saw Plaintiff was in pain and having difficulty signing the paperwork. He subsequently filed emergency and regular grievances about his finger.

Plaintiff alleges that through Luchessi, Dr. Hanf became aware of Plaintiff's injury on March 11, 2019; however, despite this (and despite Plaintiff's kites and grievances), Dr. Hanf did not see him until April 4, 2019. Dr. Hanf ordered x-rays and pain medication and confirmed that he had ordered the “soft splint” that Luchessi had given him (i.e., the wrapping of his fingers in a bandage).

Plaintiff saw an orthopedist, Dr. Walls, on May 6, 2019, who recommended trying a splint for six weeks, and if that did not work, he would request that Plaintiff have surgery. Plaintiff eventually saw another orthopedist, whom Plaintiff claims told him he had very limited options due to the delay in treatment.

Defendants move for summary judgment, arguing: (1) they did not personally participate in the alleged constitutional violation; (2) Plaintiff's Eighth Amendment rights were not violated; and (3) they are entitled to qualified immunity.

II. LEGAL STANDARD

The legal standard governing this motion is well settled: a party is entitled to summary judgment when “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P. 56(c)). An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248 (disputes over facts that might affect the outcome will preclude summary judgment, but factual disputes which are irrelevant or unnecessary are not considered). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. Anderson, 477 U.S. at 250.

“The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted); see also Celotex, 477 U.S. at 323-24 (purpose of summary judgment is "to isolate and dispose of factually unsupported claims"); Anderson, 477 U.S. at 252 (purpose of summary judgment is to determine whether a case "is so one-sided that one party must prevail as a matter of law"). In considering a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). That being said, "if the evidence of the nonmoving party "is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250 (citations omitted). The court's function is not to weigh the evidence and determine the truth or to make credibility determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249.

In deciding a motion for summary judgment, the court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, ‘it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'... In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party cannot establish an element essential to that party's case on which that party will have the burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25 (1986).

If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not establish a genuine dispute of material fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Matsushita, 475 U.S. at 587. Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324.

III. DISCUSSION

A. Eighth Amendment Standard

"The government has an 'obligation to provide medical care for those whom it is punishing by incarceration,' and failure to meet that obligation can constitute an Eighth Amendment violation cognizable under § 1983." Colwell v. Bannister, 753 F.3d 1060, 1066 (9th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 103-05 (1976)).

A prisoner can establish an Eighth Amendment violation arising from deficient medical care if he can prove that prison officials were deliberately indifferent to a serious medical need. Estelle, 429 U.S. at 104. A claim for deliberate indifference involves the examination of two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), rev'd on other grounds, WMX Tech, Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997); see also Akhtar v. Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).

If the medical need is "serious," the plaintiff must show that the defendant acted with deliberate indifference to that need. Estelle, 429 U.S. at 104; Akhtar, 698 F.3d at 1213 (citation omitted). "Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051 1060 (9th Cir. 2004). Deliberate indifference entails something more than medical malpractice or even gross negligence. Id. Inadvertence, by itself, is insufficient to establish a cause of action under section 1983. McGuckin, 974 F.2d at 1060. Instead, deliberate indifference is only present when a prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S....