Argued and Submitted Sept. 11, 2013.
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Francis Gerald Fanning, Tempe, AZ, for Plaintiff-Appellant.
Clark G. Leslie, Senior Deputy Attorney General, Office of the Nevada Attorney General, Appellate Division, Carson City, NV, for Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada, Kent J. Dawson, District Judge, Presiding. D.C. No. 2:10-cv-00150-KJD-VCF.
Before: Arthur L. ALARCÓ N and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.[*]
ALARCÓ N, Senior Circuit Judge:
John Crowley appeals from the district court's decision granting summary judgment and dismissing his pro se claim that his civil rights were violated because the named defendants, Dr. Robert Bannister, Dr. Daniel Sussman, Dwight Neven, Pat Diliddo, Tamiia Grisham, and Jane Balao-Cledera, were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment of the United States Constitution. Crowley, now represented by counsel, raises the following issues on appeal: (1) whether we have jurisdiction to hear this appeal under 28 U.S.C. § 1291; (2) whether the district court abused its discretion in failing to comply with Rule 4(m) of the Federal Rules of Civil Procedure in dismissing the complaint against Dr. Sussman; (3) whether the district court erred in granting summary judgment on the merits in favor of Dr. Bannister; (4) whether the district court abused its discretion in denying his request for leave to amend his second amended complaint; and (5) whether the district court should have been required to advise him of his rights under Rule 56(d) of the Federal Rules of Civil Procedure.
We conclude that we have jurisdiction over this appeal. We affirm the district court's grant of summary judgment in favor of Dr. Bannister because Crowley failed to submit evidence raising a genuine issue of material fact regarding whether Dr. Bannister was deliberately indifferent to his serious medical needs. We also
affirm the district court's grant of summary judgment in favor of Warden Neven and nurses Grisham, Diliddo, and Balao-Cledera because Crowley expressly waived his appeal against them in his reply brief. We vacate the clerk's entry of judgment in favor of Dr. Sussman because the district court abused its discretion in failing to comply with Rule 4(m). We also vacate the district court's decision denying Crowley's request for leave to amend his second amended complaint to name additional defendants. We remand with instructions to comply with Rule 4(m) with respect to Dr. Sussman and to allow Crowley leave to amend his second amended complaint.
Crowley, acting pro se, filed his initial complaint in the district court on February 3, 2010. The district court dismissed the complaint without prejudice following its initial review under 28 U.S.C. § 1915A. Crowley then filed his first amended complaint. Before any action was taken by the defendants or the district court with respect to the first amended complaint, he filed a second amended complaint, in which he alleged a § 1983 action for deliberate indifference of a serious medical need against Dr. Sussman; Dr. Bannister, the director of the medical department at the Nevada Department of Corrections' (" NDOC" ) High Desert State Prison (" HDSP" ); Warden Neven, the warden at HDSP; and three nurses, Grisham, Diliddo, and Balao-Cledera.
In his second amended complaint, Crowley set forth the following allegations: Nurse Grisham was the intake nurse upon his arrival at HDSP. She informed him there were only two pill calls at the facility and changed his Lithium prescription from three doses to two without the prior approval of a doctor. Dr. Sussman never met with him and did not properly screen his medical file or review Nurse Grisham's alteration to his prescription. His cellmate informed Nurse Diliddo of his " bizarre behavior" and unresponsiveness on May 10, 2009, but she refused to treat him. Nurse Balao-Cledera delayed six hours in providing him medical care after his cellmate informed her of his behavior on May 14, 2009, even though she knew he was suffering from an overdose. Dr. Bannister and Warden Neven were responsible for the operation of HDSP's medical unit and knew that the nurses regularly changed the patient's prescriptions, even though they were not qualified to do so and had not received prior approval from a doctor.
Crowley claimed that these alleged actions resulted in his hospitalization and ongoing mental and physical side effects. He also requested leave to amend the second amended complaint " with names of Defendants when they are learned."
On April 25, 2011, the district court issued a screening order based on its initial review of the second amended complaint under 28 U.S.C. § 1915A. It directed Nevada's Attorney General to advise the court within 21 days whether she could accept service for the named defendants. With respect to any defendant for whom she could not accept service, the district court ordered her to " file, under seal, the last known address(es) of those defendant(s); " and also directed Crowley to " file a motion requesting the issuance of a summons and specifying a full name and address" for such defendant. It further ordered that " [s]ervice must be completed within one hundred twenty (120) days from the Attorney General's service of a statement that she will not be able to accept service for the defendant."
Crowley's copy of the screening order was returned to the district court as undeliverable on May 2, 2011. The district court's docket indicates that the order was
" not remailed," as " [n]o other address was available" for Crowley at that time.
Seven days later, on May 9, 2011, Crowley notified the district court that he was now residing at the Lovelock Correctional Center (" LCC" ). The notice was dated May 6, 2011. The district court docket does not reflect that its screening order was thereafter mailed to the LCC address.
The Attorney General accepted service on behalf of all defendants except for Dr. Sussman. She declined to accept service on behalf of Dr. Sussman because " Daniel Sussman is not an employee nor has he ever been an employee of the NDOC." The Attorney General did not provide Dr. Sussman's last known address.
The Attorney General filed a motion to dismiss the second amended complaint and, in the alternative, a motion for summary judgment on behalf of all defendants, except for Dr. Sussman. In support of the motion, the Attorney General provided Crowley's medical ...