Reed v. Elijah

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.^[1] (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.

         I. Background

         On 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.)

         II. Motion to Strike Sur-Reply

         On 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 Judg[]ment/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.

         One of 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.)

         Ordinarily, 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 Strike.

         III. Legal Standards

         A. 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, if any, 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).

         B. Eighth Amendment

         Under 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.

         Second, 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 ...