Brown v. Filson

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6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

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9 Tony Ontia Brown,

10 Plaintiff, Case No. 3:17-cv-00425-RCJ-WGC

11 vs. ORDER

12 Gloria Carpenter,

13 Defendant.

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15 Before the Court is the Report and Recommendation of United States Magistrate Judge

16 William G. Cobb (ECF No. 36) (the Recommendation) entered on June 25, 2020, recommending

17 that the Court deny Defendant’s Motion for Summary Judgment (ECF No. 20) and Plaintiff’s

18 Motion for Summary Judgment. (ECF No. 29). No objection to the Recommendation has been

19 filed. This action was referred to Magistrate Judge Cobb under 28 U.S.C. § 636(b)(1)(B) and Local

20 Rule IB 1-4 of the Rules of Practice of the United States District Court for the District of Nevada.

21 The Court has considered the pleadings and memoranda of the parties and other relevant

22 matters of record pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2. The Court accepts

23 and adopts the factual background and the legal standards of the Recommendation. Based on the

24 record, however, the Court finds that no trier of fact could reasonably determine that Defendant

1 exhibited deliberate indifference. The Court therefore grants summary judgment in favor of

2 Defendant and rejects the Recommendation in this respect.

3 Plaintiff’s only evidence that Defendant was deliberately indifferent is the inference he

4 draws from the delay in obtaining his dentures. The record, however, is devoid of any evidence

5 that Defendant could have remedied this problem. Defendant promptly responded to all of

6 Plaintiff’s grievances explaining the situation, (ECF No. 21 Ex. B), and approved his specialized

7 “mechanical soft diet” the same day that Plaintiff’s physician recommended it, (ECF No. 22-1).

8 As Defendant explained in these grievances, the prison initially lacked a dentist but was in the

9 process of hiring one. Furthermore, Defendant lacked the authority to send Plaintiff out of the

10 prison for medical treatment, see Nev. Dep’t Corr. Admin. Regul. 613.02,

11 http://doc.nv.gov/uploadedFiles/docnvgov/content/About/Administrative_Regulations/AR%2061

12 3%20-%20042213%20-%20NO%20CHANGES.pdf (June 17, 2012) (“Any out-of-institution . . .

13 treatment must have prior approval of the Utilization Review Panel . . . .”), and there is likewise

14 nothing in the record to indicate that Defendant had the authority to transfer Plaintiff to another

15 prison or to expedite the hiring process of a dentist. Plaintiff therefore has failed to present

16 evidence sufficient to show that Defendant acted with deliberate indifference to Plaintiff’s serious

17 medical need as nothing in the record suggests that Defendant is responsible for the delay. See

18 Newton v. Clark, 441 F. App’x 482 (9th Cir. 2011) (affirming dismissal of a claim of deliberate

19 indifference to a serious medical based on a delay in treatment when the plaintiff failed to allege

20 “that any of the named defendants were responsible for the delay”) (citing Farmer v. Brennan, 511

21 U.S. 825, 837 (1994)). Accordingly, the Court grants summary judgment in favor of Defendant.

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1 CONCLUSION

2 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 36) is

3 || ADOPTED IN PART and REJECTED IN PART.

4 IT IS FURTHER ORDERED that the Defendant’s Motion for Summary Judgment (ECF

5 || No. 20) is GRANTED.

6 IT IS FURTHER ORDERED that the Plaintiffs Motion for Summary Judgment (ECF No.

7 || 29) is DENIED.

8 IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

9 IT IS SO ORDERED.

10 |} Dated October 22, 2020.

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ROBERA#YC. JONES

13 United Stateg District Judge

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