Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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DANIEL D. TWIGG,
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Plaintiff,
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v.
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STATE OF ARIZONA, RONOLFO MACABUHAY, HAROLD WHITNEY, Defendants. _______________________________

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CIV 03-2190 PHX PGR (MS)

Pending before the Court are Defendants' Motion for
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Summary Judgment (Docket No. 33) and Motion to Dismiss (Docket
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No. 38).
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I Procedural History
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Plaintiff filed a civil case in the Maricopa County
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Superior Court which, on November 7, 2003, was removed to this
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Court as a pro se civil rights action brought pursuant to 42
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U.S.C. § 1983
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See Docket No. 1 (Notice of Removal).

Defendants

filed a motion to dismiss the federal civil action on November 10, 2003.
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Docket No. 3.

On May 25, 2004, the Court denied the

motion to dismiss and also ordered the complaint filed in the Maricopa County Superior Court be dismissed with leave to amend.
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Docket No. 13.
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Case 2:03-cv-02190-PGR-MS

Document 40

Filed 11/08/2005

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Plaintiff filed an amended complaint on June 24, 2004, asserting Defendants violated his Eighth Amendment rights by denying him adequate medical treatment, including surgery and pain medication, for fractures in his right hand. 14. Docket No.

On September 27, 2004, Court ordered the amended complaint Docket No. 16.

be served on Defendants Macabuhay and Whitney.

Defendants answered the amended complaint, a scheduling order was issued, the parties engaged in discovery, and Plaintiff was deposed. On June 30, 2005, Defendants filed a motion for summary judgment and a statement of facts in support of their motion for summary judgment. Docket No. 33 & Docket No. 34. On July 7,

2005, Plaintiff was warned by the Court that his failure to respond to Defendants' motion for summary judgment within thirty days could be deemed consent to the entry of judgment against Plaintiff, pursuant to Rule 7.2(i), Local Rules of Civil

Procedure for the United States District Court for the District of Arizona.1 See Docket No. 35. On August 19, 2005, the Court

gave Plaintiff additional time to respond to Defendants' motion for summary judgment, requiring that Plaintiff respond to the motion on or before September 19, 2005. Docket No. 37.

On October 3, 2005, Defendants filed a motion to dismiss Plaintiff's section 1983 suit, arguing that Plaintiff's failure to respond to the motion for summary judgment requires dismissal of the amended complaint. See Docket No. 38.

Prior to December 1, 2004, this rule was designated as Local Rule 1.10. -2Case 2:03-cv-02190-PGR-MS Document 40 Filed 11/08/2005 Page 2 of 8

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As of November 7, 2005, Plaintiff has not responded to or otherwise opposed Defendants' motion for summary judgment or Defendants' motion to dismiss, nor did Plaintiff file a separate motion for summary judgment prior to the Court's extended deadline for dispositive motions of July 1, 2005. No. 24. II Discussion A. Rule provides that Standard for granting summary judgment 56 of the Federal Rules shall of be Civil entered Procedure if the See Docket

summary

judgment

pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show that there is no genuine dispute regarding the material facts of the case and the moving party is entitled to a judgment as a matter of law. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986). judgment The Court must consider a party's motion for summary construing the alleged facts with all reasonable

inferences favoring the nonmoving party.

Baldwin v. Trailer

Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001). The party seeking summary judgment bears the initial burden of informing the Court of the basis for its motion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Where

Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).

the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest
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upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." 2510. Anderson, 477 U.S. at 248, 106 S. Ct. at

Summary judgment is appropriate against a party who

"fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." 322, 106 S. Ct. at 2552. Id., 477 U.S. at

See also Citadel Holding Corp. v.

Roven, 26 F.3d 960, 964 (9th Cir. 1994). The nonmoving party need not "produce evidence in a form that would be admissible at trial in order to avoid summary judgment." Celotex, 477 U.S. at 324, 106 S. Ct. at 2550.

However, "Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id.

B. Analysis To prevail in a section 1983 medical claim alleging violation of the Eighth Amendment, a plaintiff must show that the defendant acted with "deliberate indifference to his serious medical need." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct.

285, 292 (1976). The plaintiff must demonstrate that a specific defendant, despite his knowledge of a substantial risk of serious harm to the plaintiff, failed to take reasonable

measures to abate the harm.

Farmer v. Brennan, 511 U.S. 825, "A defendant must

847, 114 S. Ct. 1970, 1975-76 (1994).

purposefully ignore or fail to respond to a prisoner's pain,
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medical need or condition acting with knowledge or reckless disregard resulting in significant harm" to violate an

individual's Eight Amendment rights. 114 S. Ct. at 1976.

Id,, 511 U.S. at 831-32,

Deliberate indifference is demonstrated where prison officials deny, delay, or interfere with medical treatment, if the indifference is substantial and the conduct rises to the level of "unnecessary and wanton infliction of pain." Estelle,

429 U.S. at 105-06, 97 S. Ct. at 291-92; Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). State prison

officials have "wide discretion regarding the nature and extent of medical treatment." Jones v. Johnson, 781 F.2d 769, 771 (9th

Cir. 1986). "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a section 1983 claim." Franklin v. State of Or. Welfare

Div., 662 F.2d 1337, 1344 (9th Cir. 1981). Defendants assert that there are no genuine issues of material fact preventing summary judgment in their favor and that, taking the facts in the light most favorable to Plaintiff, the basis for Plaintiff's claims is a disagreement between Plaintiff and his medical care providers regarding his treatment for his right hand fractures. Additionally, Defendants present

evidence that Arizona Department of Corrections medical care providers, including Defendants, addressed and treated

Plaintiff's medical condition, i.e., the fractures in his right hand. See Docket No. 34, Exhs. A & C. Plaintiff offers no evidence, not even a sworn

statement, that any Defendant was deliberately indifferent to
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his serious medical needs.

Plaintiff does not assert any facts

contradicting Defendants' statement of facts in support of their motion for summary judgment. Plaintiff has not made any showing establishing the existence of any element essential to his claims in opposition to Defendants' motion for judgment as a matter of law in their favor. Additionally, the Local Civil Rules for the United States District Court for the District of Arizona, Rule 7.2(i), provide that a party's failure to respond to a motion for summary judgment may, in the Court's discretion, be deemed a consent to the Court's granting of judgment in favor of the movant. 1994). See Brydges v. Lewis, 18 F.3d 651, 652-53 (9th Cir. When the Court has warned the non-moving part that their

failure to respond "shall constitute a consent" to the granting of the motion, the Court may properly exercise its discretion to grant the motion for judgment as a matter of law based on the non-moving party's construed consent. Id. See also Henry v.

Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993) (noting, however, that the Court's discretion "is necessarily abused when exercised to grant a motion for summary judgment where the movant's papers are insufficient to support that motion or on their face reveal a genuine issue of material fact."); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (holding that district court did not abuse its discretion in summarily

granting defendants' motion to dismiss pursuant to local rule where pro se plaintiff had time to respond to motion but failed to do so).

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III CONCLUSION Defendants' motion for summary judgment denies the factual basis for Plaintiff's claims, i.e., that Defendants exhibited deliberate indifference to Plaintiff's serious medical needs in violation of Plaintiff's rights pursuant to the Eighth Amendment. Plaintiff has not demonstrated the existence of a

genuine fact for trial by producing controverting evidence or by contesting Defendants' statement of facts in support of their motion for summary judgment. respond to the motion for Because Plaintiff failed to in Defendants' favor,

judgment

although he was warned his case could be dismissed for his failure to do so, and because Defendants deny the underlying factual basis for Plaintiff's claim, summary judgment in favor of Defendants is appropriate.

IT IS THEREFORE ORDERED THAT Defendants' Motion for Summary Judgment (Docket No. 33) is GRANTED. Judgment with

prejudice is hereby entered in favor of Defendants and against Plaintiff on all claims stated in Plaintiff's amended complaint, and Plaintiff is to take nothing thereby. IT IS FURTHER ORDERED that, having granted judgement with prejudice, Defendants' Motion to Dismiss [Docket No. 38] is denied as moot.

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IT IS FURTHER ORDERED that, as a result of summary judgment having been granted in favor of Defendants, the Clerk of the Court shall enter judgment accordingly. DATED this 7th day of November, 2005.

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