United States District Court, D. Arizona
Robert S. Reed, Plaintiff,
Itoro Elijah, et al., Defendants.
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
Robert S. Reed, who is currently confined in the Arizona
State Prison Complex-Lewis, brought this civil rights action
pursuant to 42 U.S.C. § 1983. (Doc. 14.) Defendant
Elijah moves for summary judgment, and Plaintiff
opposes. (Docs. 41, 44.) Defendant Elijah has also
filed a “Motion to Strike Sur-Reply and Supporting
Documents (Docs. 50 and 51).” (Doc. 53.) The Court will
deny both Motions.
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated an Eighth Amendment medical
care claim against Defendant Dr. Itoro Elijah for
discontinuing Plaintiff's pain medication and required
her to answer. (Docs. 15, 16, 17.)
Motion to Strike Sur-Reply
September 4, 2018, Defendant filed her Motion for Summary
Judgment and Separate Statement of Facts. (Docs. 40, 41.) On
September 19, 2018, Plaintiff filed his Response and his
Opposition to Defendant's Statement of Facts. (Docs. 44,
45.) On October 3, 2018, Defendant filed her Reply and a
Supplemental Statement of Facts. (Docs. 47-48.) Defendant did
not seek leave to file her Supplemental Statement of Facts,
even though the Local Rules of Civil Procedure do not permit
a reply statement of facts. See LRCiv 56.1(b).
Plaintiff then filed a “Response to Defendant's
Suppl[e]mental Motion for Summary Judgment/Defendant's
Reply Brief” and an “Opposition to
Defendant's Suppl[e]mental Statement of Facts.”
(Docs. 50, 51.) Defendant now seeks to strike Plaintiff's
Response and Opposition as an unauthorized sur-reply. (Doc.
53.) Plaintiff did not respond to the Motion.
the issues in this case is whether Plaintiff received his
pain medication, Gabapentin, in the days prior to a July 13,
2016 blood draw to check for Plaintiff's Gabapentin
levels. With her Motion, Defendant presented a medication
administration record which indicates Plaintiff received one
of his two daily doses of Gabapentin on July 11, 2016, and
did not receive any doses on July 12 or 13, 2016. (Doc. 42 at
6-7.) In his Response, Plaintiff also presents evidence that
he did not receive any Gabapentin in the two days prior to
his blood draw. (Doc. 45 at 40 ¶ 5.) With her Reply,
Defendant submits that same record indicating that Plaintiff
did not receive any Gabapentin on July 12 or 13 and only one
dose on July 11, 2016. (Doc. 48 at 5-6.) But she also
produces a different type of medication administration form
for July 2016, which was “Processed” on April 27,
2018, and this form indicates that Plaintiff received his
Gabapentin twice daily on July 11, 12 and 13, 2016.
(Id. at 9-10.) Defendant does not explain the
discrepancy between these two records or why she did not
produce the second record with her Motion, but she relies on
the second record produced with her Reply to argue that
Plaintiff did receive two doses of Gabapentin each day
between July 11 and July 13, 2016. (Doc. 47 at 6-7.)
Plaintiff contends that this second form showing he received
two doses of Gabapentin each day from July 11-13 is
“falsified” and his sur-reply disputes this new
evidence. (See Docs. 50-51.)
the Court would decline to consider Defendant's newly
produced evidence submitted with her Reply. See Provenz
v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (the
district court should not consider new evidence presented in
a reply to a motion for summary judgment unless the
non-movant was given an opportunity to respond). Here,
though, Plaintiff has responded to this newly produced
evidence. Therefore, the Court may consider the evidence in
Defendant's reply and Plaintiff's sur-reply.
Accordingly, the Court will deny Defendant's Motion to
Summary Judgment Standard
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, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
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.
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).
the Eighth Amendment, a prisoner must demonstrate that a
defendant acted with “deliberate indifference to
serious medical needs.” Jett v. Penner, 439
F.3d 1091, 1096 (9th Cir. 2006) (citing Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). There are two prongs
to the deliberate-indifference analysis: an objective prong
and a subjective prong. First, a prisoner must show a
“serious medical need.” Jett, 439 F.3d
at 1096 (citations omitted). A “‘serious'
medical need exists if the failure to treat a prisoner's
condition could result in further significant injury or the
‘unnecessary and wanton infliction of pain.'”
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc)
(internal citation omitted). Examples of a serious medical
need include “[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy
of comment or treatment; the presence of a medical condition
that significantly affects an individual's daily
activities; or the existence of chronic and substantial
pain.” McGuckin, 974 F.2d at 1059-60.
a prisoner must show that the defendant's response to
that need was deliberately indifferent. Jett, 439
F.3d at 1096. An official acts with deliberate indifference
if he “knows of and disregards an excessive risk to
inmate health or safety; to satisfy the knowledge component,
the official must both be aware of 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. 825, 837 (1994).
“Prison officials are deliberately indifferent to a
prisoner's serious medical needs when they deny, delay,
or intentionally interfere with medical treatment, ”
Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)
(internal citations and quotation marks omitted), or when
they fail to respond to a prisoner's pain or possible
medical need. Jett, 439 F.3d at 1096. Deliberate
indifference is a higher standard than negligence or lack of
ordinary due care for the prisoner's safety.
Farmer, 511 U.S. at 835. “Neither negligence
nor gross negligence will constitute deliberate
indifference.” Clement v. California Dep't of
Corr., 220 F.Supp.2d 1098, 1105 (N.D. Cal. 2002);
see also Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir. 1980) (mere claims of “indifference,
” “negligence, ” or “medical
malpractice” do not support a claim under § 1983).
“A difference of opinion does not amount to deliberate
indifference to [a plaintiff's] serious medical
needs.” Sanchez v. Vild, 89 ...