Horton II v. Gittere

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 ALLEN HORTON II, Case No. 3:21-CV-00280-CLB 5 Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT1 6 v. [ECF No. 50] 7 WILLIAM GITTERE, et al., 8 Defendants. [9] 10 This case involves a civil rights action filed by Plaintiff Allen Horton (“Horton”) against 11 Defendant Ted Hanf, M.D. (“Dr. Hanf”). Currently pending before the Court is Dr. Hanf’s 12 motion for summary judgment. (ECF Nos. 50, 52, 56.)2 Horton responded, (ECF Nos. 67, 13 66)3, and Dr. Hanf replied. (ECF No. 68.) For the reasons stated below, Dr. Hanf’s motion 14 for summary judgment, (ECF No. 50), is granted. 15 I. BACKGROUND 16 A. Procedural History 17 Horton is an inmate in the custody of the Nevada Department of Corrections 18 (“NDOC”). On June 23, 2021, Horton filed a civil rights complaint (“Complaint”) under 42 19 U.S.C. § 1983 for events that occurred while Horton was incarcerated at the Ely State 20 Prison (“ESP”). (ECF No. 1-1.) 21 The Complaint alleged the following: Horton had a stent implanted in his heart in 22 February 2020 by a non-NDOC employed surgeon at a hospital in Ely. The surgeon [23] 24 1 The parties have voluntarily consented to have this case referred to the undersigned to conduct all proceedings and entry of a final judgment in accordance with [25] 28 U.S.C. § 636 (c) and Fed. R. Civ. P. 73. (ECF No. 35.) 26 2 ECF No. 50 is the motion for summary judgment. ECF No. 52 consists of Horton’s medical records filed under seal. ECF No. 56 consists of authenticating declarations filed in support of the exhibits to the motion for summary judgment. [27] 3 ECF No. 67 is the response to the motion for summary judgment and ECF No. 66 1 instructed that for Horton’s post-surgical care, he was to be placed on a low-sodium diet 2 and his heart, blood pressure, and breathing were to be monitored, sometimes daily. Dr. 3 Hanf was aware of the doctor’s instructions but did not follow through with any of them. 4 (ECF No. 6 at 4-6, 14.) 5 Additionally, the Complaint alleged the following: when Horton was first transferred 6 to ESP, he had a telehealth appointment with Dr. Martin (who was at High Desert State 7 Prison (“HDSP”)), and Dr. Martin told Horton that he was at the wrong prison: it was not 8 a medical facility and was at too high an elevation for a person with Horton’s medical 9 conditions. Dr. Martin told Horton that he would put in for Horton to be transferred to the 10 Northern Nevada Correctional Center (“NNCC”), which is at a lower elevation, but that 11 didn’t happen. Horton informed Dr. Hanf on several occasions that he “continuously” 12 experiences breathing complications and chest pain. Dr. Hanf responded that Horton’s 13 breathing and respiratory issues could be because “Ely has an extremely high elevation.” 14 Horton asked to be transferred to NNCC, but Dr. Hanf refused. Dr. Hanf knew that Horton 15 was on 22 medications and suffered from a myriad of serious medical conditions. (Id. at 16 4, 10-11.) 17 On January 18, 2022, the District Court screened the Complaint pursuant to 28 18 U.S.C. § 1915A. (ECF No. 5.) Horton was allowed to proceed on: (1) an Eighth 19 Amendment deliberate indifference to serious medical needs (failure to follow doctor’s 20 orders) against Dr. Hanf; and (2) an Eighth Amendment deliberate indifference to serious 21 medical needs (failure to transfer to another facility) against Dr. Hanf. (Id. at 17-18.) 22 On August 23, 2023, Defendants filed their motion for summary judgment arguing: 23 (1) Dr. Hanf was not deliberately indifferent in treating Horton post-stent or that treatment, 24 or lack thereof, resulted in any harm; (2) Dr. Hanf was not deliberately indifferent toward 25 any need to transfer Horton to NNCC; and (3) Dr. Hanf is entitled to qualified immunity. 26 (ECF No. 50.) 27 /// 1 B. Undisputed Facts re: Summary Judgment 2 The following facts are undisputed: Horton was transferred to NNCC from HDSP 3 on October 31, 2019. (ECF No. 50-2 at 2.) According to a case note dated October 31, 4 2019, in Horton’s Offender Information Summary (“OIC”), Horton was approved for 5 transfer from HDSP to NNCC for “RMF [Regional Medical Facility] admit.” (ECF No. 50-3 6 at 8.) A case note dated November 4, 2019, states that Horton was “[r]eceived from HDSP 7 for RMF however he was never admitted.” (Id.) On November 6, 2019, a classification 8 committee at NNCC determined Horton did “not need to remain at NNCC.” (Id.) The note 9 also reflects Horton was “[m]edical clear for transfer, prior approval for ESP.” (Id.) Horton 10 was transferred from NNCC to ESP on November 12, 2019. (ECF No. 50-2 at 2.) Horton 11 was interviewed by medical and mental health staff upon his arrival at ESP, and no issues 12 or concerns were noted. (ECF No. 50-3 at 8.) 13 On January 7, 2020, Dr. Hanf wrote orders and progress notes regarding a follow14 up to Horton’s recent EKG. (ECF No. 52-1 at 12; ECF No. 52-2 at 7 (sealed).) Dr. Hanf 15 noted “EKG ischemic” changes, that a man down would be called, and that Horton would 16 be referred to “Cardio (WBRH).” (Id.) On February 18, 2020, Horton underwent a cardiac 17 catheterization procedure at William Bee Ririe Hospital (“WBRH”) in Ely, Nevada. (ECF 18 No. 2-3 at 12; ECF No. 52-4 at 22-33 (sealed).) Horton was discharged to ESP the same 19 day, and discharge instructions prescribed a “low salt, low fat” diet and additional 20 medication. (ECF No. 52-4 at 22 (sealed).) 21 Dr. Hanf saw Horton for a follow-up appointment on or about April 14, 2020. (ECF 22 No. 52-2 at 6 (sealed).) During that appointment, Dr. Hanf evaluated Horton’s medical 23 condition for potential transfer to either the RMF or NNCC, as it was Horton’s desire to be 24 transferred out of ESP to NNCC. (Id.) After taking vitals and examining Horton, Dr. Hanf 25 confirmed Horton’s medical condition was stable. (Id.) Dr. Hanf also explained to Horton 26 that his “current classification” was “appropriate.” (Id.) Because Horton was medically 27 stable, Dr. Hanf informed Horton that he was “not [an] RMF candidate,” and, with regard 1 Dr. Hanf saw Horton again on February 2, 2021, for a 1-year follow-up from his 2 stent surgery. (Id. at 3.) Horton “again [asked] re transfer to NNCC.” (Id.) Dr. Hanf 3 “reaffirmed” his opinion that Horton’s condition was stable, that his medical classification 4 was appropriate and did not require RMF placement, and that “medical does not dictate 5 [a specific] institution.” (Id.) 6 As part of the follow-up examination, Dr. Hanf ordered a referral to cardiology at 7 WBRH for follow-up post stent. (ECF No. 52-4 at 16 (sealed).) Horton was seen at WBRH 8 on March 9, 2021. (Id. at 2-7.) Both the attending physician and nurse at WBRH 9 performed physical exams and noted that breathing was “not labored” and “breath sound 10 within normal limits.” (Id. at 5.) A chest x-ray, blood tests, and an EKG were performed, 11 and proved normal. (Id. at 2-15.) Both the attending nurse and physician concluded that 12 Horton’s condition was “stable,” and Horton was discharged to the ESP infirmary. (Id. at 13 4, 7.) 14 Medical records show that Horton received regular vital and blood pressure checks 15 while at ESP. (ECF No. 52-6 (sealed).) Additionally, Dr. Hanf ordered an EKG on June 16 18, 2020, and Horton received several additional EKGs at ESP on June 21, 2020, July 17 12, 2020, March 10, 2021, and April 2, 2021. (ECF No. 52-7 (sealed).) 18 Horton was subjected to blood tests in the months following his hospitalization. 19 (ECF No. 52-8 (sealed).) Blood tests, including lipid panels for triglyceride and cholesterol 20 levels, were performed on the following dates while Horton was housed at ESP: Mar 6, 21 2020; April 24, 2020; May 1 and 8, 2020; October 24, 2020; February 27, 2021; and April 22 14, 2021. (Id.) 23 Horton’s records also reflect that Horton refused medical treatment and/or vital 24 checks on numerous occasions. (See ECF No. 52-5 (sealed).) For example, on March 25 14, 2020, vitals were taken, but Horton indicated to nursing staff that he was not taking 26 his blood pressure medication. (ECF No. 52-3 at 19 (sealed).) On March 16, 2020, Dr. 27 Hanf ordered nursing staff to “confirm/encourage compliance with all” vital checks and 1 2020, Dr. Hanf noted that Horton was “combative toward staff.” (ECF No. 52-3 at 20 2 (sealed).) 3 As to Horton’s low sodium diet, on July 31, 2019, a memo was issued to all NDOC 4 inmates announcing that new menus had been developed and would be served beginning 5 August 3, 2019. (ECF No. 50-16 at 2.) The new menus were developed as a joint effort 6 between NDOC, a dietician, and the state’s Chief Medical Officer and several factors were 7 considered, including the “[i]nterest and need to reduce the sodium content of the men’s 8 and women’s main menus.” (Id.) In an attached letter dated June 28, 2019, registered 9 dietician and nutritionist Michele Cowee certified that the “new menus [were] designed to 10 improve the dietary intake of the inmates” and that “[t]he sodium level has been cut in 11 half.” (Id. at 3.) 12 Additionally, the new menus were certified to meet the standards outlined in the 13 “Dietary Guidelines for Americans 2015-2020” developed by the United States 14 Department of Health and Human Services and the Department of Agriculture, and 15 consistent with these guidelines, daily sodium intake on the main menu was reduced to 16 no more than 2300 milligrams per day. (ECF No. 50-16; 50-17 at 16; 50-18.) As a result 17 of the reduction of sodium in the diets, the low sodium medical diet was discontinued and 18 removed from NDOC MD 124, effective September 2019. (ECF No. 50-19.) Despite the 19 low sodium medical diet being discontinued, Dr. Naughton assigned Horton to the “Low 20 Sodium 3000-4500mg” diet at NNCC on October 31, 2019. (ECF No. 52-9 at 2 (sealed).) 21 II. LEGAL STANDARDS 22 “The court shall grant summary judgment if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 24 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 25 substantive law applicable to the claim or claims determines which facts are material. 26 Coles v. Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 27 U.S. 242, 248 (1986)). Only disputes over facts that address the main legal question of 1 material. Frlekin v. Apple, Inc., 979 F.3d 639 , 644 (9th Cir. 2020). A dispute is “genuine” 2 only where a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 3 248. 4 The parties subject to a motion for summary judgment must: (1) cite facts from the 5 record, including but not limited to depositions, documents, and declarations, and then 6 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 7 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 8 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 9 authenticated, and if only personal knowledge authenticates a document (i.e., even a 10 review of the contents of the document would not prove that it is authentic), an affidavit 11 attesting to its authenticity must be attached to the submitted document. Las Vegas 12 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 13 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 14 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 15 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Stephens v. Union Pac. R.R. Co., [16] 935 F.3d 852, 856 (9th Cir. 2019). 17 The moving party bears the initial burden of demonstrating an absence of a 18 genuine dispute. Soremekun, 509 F.3d at 984 . “Where the moving party will have the 19 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 20 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 21 at 984 . However, if the moving party does not bear the burden of proof at trial, the moving 22 party may meet their initial burden by demonstrating either: (1) there is an absence of 23 evidence to support an essential element of the nonmoving party’s claim or claims; or (2) 24 submitting admissible evidence that establishes the record forecloses the possibility of a 25 reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco 26 Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz 27 Cos., 210 F.3d 1099 , 1102 (9th Cir. 2000). The court views all evidence and any 1 Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its 2 burden for summary judgment, the nonmoving party is not required to provide evidentiary 3 materials to oppose the motion, and the court will deny summary judgment. Celotex, 477 4 U.S. at 322-23. 5 Where the moving party has met its burden, however, the burden shifts to the 6 nonmoving party to establish that a genuine issue of material fact actually exists. 7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 , (1986). The 8 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 9 v. Vigorous Shipping & Trading S.A., 992 F.3d 893 , 897 (9th Cir. 2021) (internal quotation 10 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 11 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 12 affidavits, and/or admissible discovery material in support of its contention that such a 13 dispute exists. See Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden is 14 “not a light one,” and requires the nonmoving party to “show more than the mere existence 15 of a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 376 , 387 16 (9th Cir. 2010)). The non-moving party “must come forth with evidence from which a jury 17 could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf Shipping 18 Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387 ). Mere assertions 19 and “metaphysical doubt as to the material facts” will not defeat a properly supported and 20 meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., [21] 475 U.S. 574 , 586–87 (1986). 22 When a pro se litigant opposes summary judgment, his or her contentions in 23 motions and pleadings may be considered as evidence to meet the non-party’s burden to 24 the extent: (1) contents of the document are based on personal knowledge, (2) they set 25 forth facts that would be admissible into evidence, and (3) the litigant attested under 26 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918 , 923 27 (9th Cir. 2004). 1 Upon the parties meeting their respective burdens for summary judgment, the 2 court determines whether reasonable minds could differ when interpreting the record; the 3 court does not weigh the evidence or determine its truth. Velazquez v. City of Long Beach, [4] 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in the record not 5 cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). Nevertheless, 6 the court will view the cited records before it and will not mine the record for triable issues 7 of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party does not make nor 8 provide support for a possible objection, the court will likewise not consider it). 9 III. DISCUSSION 10 A. Eighth Amendment – Deliberate Indifference to Serious Medical Needs 11 The Eighth Amendment “embodies broad and idealistic concepts of dignity, 12 civilized standards, humanity, and decency” by prohibiting the imposition of cruel and 13 unusual punishment by state actors. Estelle v. Gamble, 429 U.S. 97, 102 (1976) (internal 14 quotation omitted). The Amendment’s proscription against the “unnecessary and wanton 15 infliction of pain” encompasses deliberate indifference by state officials to the medical 16 needs of prisoners. Id. at 104 (internal quotation omitted). It is thus well established that 17 “deliberate indifference to a prisoner’s serious illness or injury states a cause of action 18 under § 1983.” Id. at 105. 19 Courts in Ninth Circuit employ a two-part test when analyzing deliberate 20 indifference claims. The plaintiff must satisfy “both an objective standard—that the 21 deprivation was serious enough to constitute cruel and unusual punishment—and a 22 subjective standard—deliberate indifference.” Colwell v. Bannister, 763 F.3d 1060 , 1066 23 (9th Cir. 2014) (internal quotation omitted). First, the objective component examines 24 whether the plaintiff has a “serious medical need,” such that the state’s failure to provide 25 treatment could result in further injury or cause unnecessary and wanton infliction of pain. 26 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). Serious medical needs include those 27 “that a reasonable doctor or patient would find important and worthy of comment or 1 daily activities; or the existence of chronic and substantial pain.” Colwell, 763 F.3d at 1066 2 (internal quotation omitted). 3 Second, the subjective element considers the defendant’s state of mind, the extent 4 of care provided, and whether the plaintiff was harmed. “Prison officials are deliberately 5 indifferent to a prisoner's serious medical needs when they deny, delay, or intentionally 6 interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 7 (internal quotation omitted). However, a prison official may only be held liable if they 8 “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. 9 Chung, 391 F.3d 1050, 1057 (9th Cir. 2004). The defendant prison official must therefore 10 have actual knowledge from which they can infer that a substantial risk of harm exists, 11 and also make that inference. Colwell, 763 F.3d at 1066 . An accidental or inadvertent 12 failure to provide adequate care is not enough to impose liability. Estelle, 429 U.S. at 105– 13 06. Rather, the standard lies “somewhere between the poles of negligence at one end 14 and purpose or knowledge at the other. . .” Farmer v. Brennan, 511 U.S. 825, 836 (1994). 15 Accordingly, the defendants’ conduct must consist of “more than ordinary lack of due 16 care.” Id. at 835 (internal quotation omitted). 17 1. Analysis 18 Starting with the objective element, the parties agree that Horton’s heart condition, 19 breathing and respiratory issues constitute “serious medical needs.” However, 20 Defendants argue summary judgment should be granted because Horton cannot 21 establish the second, subjective element of his claims. Specifically, Defendants argue 22 they were not deliberately indifferent to Horton’s conditions. Under the subjective element, 23 there must be some evidence to create an issue of fact as to whether the prison official 24 being sued knew of, and deliberately disregarded the risk to Horton’s safety. Farmer, 511 25 U.S. at 837. “Mere negligence is not sufficient to establish liability.” Frost v. Agnos, 152 26 F.3d 1124, 1128 (9th Cir. 1998). Moreover, this requires Horton to “demonstrate that the 27 defendants’ actions were both an actual and proximate cause of [his] injuries.” Lemire v. 1 1081, 1098- 1101 (9th Cir. 2010), vacated by City of Reno, Nev. v. Conn, 563 U.S. 915 2 (2011), reinstated in relevant part 658 F.3d 897 (9th Cir. 2011). 3 Here, as detailed above, Dr. Hanf submitted authenticated and undisputed 4 evidence which affirmatively shows Horton received adequate care while incarcerated 5 related to his heart condition, breathing, and respiratory issues. (See ECF Nos. 52-1, 526 2, 52-3, 52-4, 52-5, 52-6, 52-7, 52-8, 52-9 (sealed).) Evidence shows that Horton received 7 continuous monitoring for his medical conditions—(See ECF Nos. 52-6, 52-7, 52-8 8 (sealed))—despite his own refusal to accept the medical care on numerous occasions. 9 (See ECF No. 52-5 (sealed).) Additionally, Horton does not dispute that low sodium diets 10 were discontinued by NDOC and replaced by a mainline diet with lower sodium content 11 than the discontinued low sodium diet. (ECF Nos. 50-16, 50-17, 50-18.) Further, Dr. Hanf 12 provided evidence that as a medical provider, he did not have a say about placement at 13 a particular facility. (See ECF No. 52-2 at 3, 6.) 14 Accordingly, Dr. Hanf has met his initial burden on summary judgment by showing 15 the absence of a genuine issue of material fact as to the deliberate indifference claims 16 related to low sodium diet, vital monitoring, and transfer. See Celotex Corp., 477 U.S. at 17 325. The burden now shifts to Horton to produce evidence that demonstrates an issue of 18 fact exists as to whether Defendants were deliberately indifferent to his medical needs. 19 Nissan, 210 F.3d at 1102. 20 Aside from his own assertions, Horton provides no further evidence or support that 21 a denial or delay in treatment caused him any damage. He has not come forward with 22 evidence to show Dr. Hanf knew of an excessive risk to his health and disregarded that 23 risk. To the contrary, the evidence before the Court shows Horton’s concerns about his 24 heart, breathing, and respiratory issues were affirmatively treated and there is no 25 evidence showing that he suffered any damage because of not being housed at his 26 preferred facility. Therefore, Horton has failed to meet his burden on summary judgment 27 to establish that prison officials were deliberately indifferent to his medical needs, as he 1 | Defendants deliberately denied, delayed, or intentionally interfered with treatment related 2| to his pelvic girdle. See Hallett, 296 F.3d at 744 . 3 Moreover, to the extent that Horton’s assertions in this case are based upon his 4) disagreement with Dr. Hanf’s choice of treatment, this does not amount to deliberate 5 | indifference. See Toguchi, 391 F.3d at 1058 . In cases where the inmate and prison staff 6 | simply disagree about the course of treatment, only where it is medically unacceptable 7 | can the plaintiff prevail. /d. Horton has failed to show that Dr. Hanf’s “chosen course of 8 | treatment was medically unacceptable under the circumstances.” /d. Accordingly, Horton fails to meet his burden to show an issue of fact that Dr. Hanf was deliberately indifferent 10| to his needs because Horton has only shown that he disagrees between alternative courses of treatment, such as being placed at a certain facility. 12 Accordingly, Dr. Hanf’s motion for summary judgment is granted in its entirety.4 13| IV. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several | cases not discussed above. The Court has reviewed these arguments and cases and 46 | determines that they do not warrant discussion as they do not affect the outcome of the issues before the Court. 18 For the reasons stated above, IT IS ORDERED that Dr. Hanf’s motion for summary 49 | judgment, (ECF No. 50), is GRANTED. 20 IT IS FURTHER ORDERED that the Clerk of the Court CLOSE this case and ENTER JUDGMENT accordingly. 22 DATED: December 27, 2023. * [24] UNITED STATES\MAGISTRATE JUDGE [25] 26) 4 Where the Court determines a plaintiff's allegations fail to show a statutory or 97 constitutional violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194 , 201 (2001). Here, Horton is unable to establish & violation of his rights under the United States Constitution. Accordingly, there is no need for the Court to address Dr. Hanf’s arguments regarding qualified immunity.