United States District Court, D. Arizona
ROBERT C. BROOMFIELD, District Judge.
Plaintiff Thomas Stewart, Jr., brought this pro se civil rights action under 42 U.S.C. § 1983 against Dr. Karen Barcklay, an Arizona Department of Corrections (ADC) physician (Doc. 1). Before the Court are the following motions:
(1) Dr. Barcklay's Motion for Summary Judgment (Doc. 65);
(2) Stewart's Motion for Extension of Time to File Cross-Motion for Summary Judgment (Doc. 92);
(3) Stewart's Motion for Counsel (Doc. 93);
(4) Stewart's Cross-Motion for Summary Judgment (Doc. 96); and
(5) Dr. Barcklay's Motion to Strike Stewart's Cross-Motion (Doc. 97).
The Court will grant Dr. Barcklay's Motion for Summary Judgment and Motion to Strike, strike Stewart's Cross-Motion for Summary Judgment, and deny as moot Stewart's Motion for Extension of Time and Motion for Counsel.
Stewart's claims arose during his confinement at the Arizona State Prison Complex-Yuma Complex (Doc. 1). He alleged that Dr. Barcklay was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment ( id. at 16). Stewart states that he suffers from spinal stenosis and disc degeneration and bulging ( id. at 5). According to Stewart, Dr. Barcklay failed to consider his prior medical records; took away a cane he had used for seven years; refused to provide pain management shots; and discontinued his blood pressure medication, which resulted in Stewart's transfer to the hospital for treatment of high blood pressure and pain ( id. at 9-13, 16).
Dr. Barcklay filed a Motion for Summary Judgment arguing that (1) Stewart cannot show she was deliberately indifferent to his serious medical needs, (2) Dr. Barcklay is entitled to qualified immunity, and (3) Stewart's request for punitive damages should be dismissed (Doc. 65).
On February 7, 2014, after Dr. Barcklay's motion was fully briefed, Stewart filed his Motion for Extension of Time to File Cross-Motion for Summary Judgment (Doc. 92). On February 18, 2014, he filed a Motion for Counsel (Doc. 93), and on March 3, 2014, he filed his Cross-Motion for Summary Judgment (Doc. 96). Dr. Barcklay filed her opposition to the Motions for Extension and for Counsel and moved to strike Stewart's Cross-Motion for Summary Judgment (Docs. 94-95, 98).
II. Pending Motions
Stewart's Motion for Extension to File Cross-Motion for Summary Judgment comes almost six months after the dispositive motions deadline, which was August 19, 2013 (Docs. 64, 92). Stewart argues that he should be allowed to rebut Dr. Barcklay's reply arguments; however, Dr. Barcklay did not raise arguments in her reply that were not set forth in her Motion for Summary Judgment, to which Stewart responded. Even if she had raised new arguments in her reply, they would not be considered by the Court. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (arguments raised for first time in reply brief are not considered). Stewart presents no grounds warranting an extension to the dispositive motions deadline, and he filed his Cross-Motion for Summary Judgment without leave. Consequently, his Cross-Motion is not authorized. Dr. Barcklay's Motion to Strike will therefore be granted, and the Cross-Motion will be stricken.
In light of this determination, Stewart's Motion for Extension and Motion for Counsel will be denied as moot.
The remaining motion is Dr. Barcklay's Motion for Summary Judgment (Doc. 65).
III. Summary Judgment Standard
A court must grant summary judgment "if the movant shows that there is no genuine dispute 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. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed.R.Civ.P. 56(c)(1).
At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).
IV. Relevant Facts
The relevant disputed and undisputed facts are taken from Dr. Barcklay's Separate Statement of Facts (DSOF) (Doc. 66) and Stewart's Separate Statement of Facts (PSOF) (Doc. 83).
Stewart's medical chart documents that in 2007, he received epidural steroid injections and between 2007 and 2010, he received pain medication injections for relief of back pain (DSOF ¶¶ 48, 62; PSOF ¶ 60). His chart also shows that at different times since 2007, Stewart has been issued Special Needs Orders for medical accommodations, including double mattresses, medical shoes, back braces, no behind-the-back cuffing, lower bunks, extra blankets, and no prolonged standing (DSOF ¶ 52). There is no record that Stewart was ever issued a Special Needs Order for a cane ( id. ).
Stewart was transferred to the Yuma Complex in June 2010 (DSOF ¶ 21). When he arrived at Yuma, he had a cane that the Maricopa County Jail issued to him in 2004 and he had since been permitted to keep ...