Davis v. Diaz

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BEN DAVIS,
Plaintiff,
v.
ERIN DIAZ,
Defendant.
Case No. 3:18-cv-00264-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Erin Diaz-Oatman’s Motion for Summary
Judgment at Docket 45 and Plaintiff Ben Davis’s Motion to Dismiss Summary
Judgment at Docket 48.1 The Court provided Plaintiff with a Notice Regarding
Motion for Summary Judgment at Docket 49, setting forth in detail the requirements
for opposing a motion for summary judgment and providing Plaintiff with an
opportunity to file an opposition. Plaintiff filed a brief declaration as his opposition at
Docket 50.2 Defendant replied at Docket 51. Defendant requested oral argument,
however, it was not necessary for the Court’s decision.
1 Due to the coronavirus pandemic, by Miscellaneous General Order 20-11, the District of
Alaska imposed a stay on all civil matters for 30 days, effective March 30, 2020. As the
presiding judge in this matter, the undersigned judge vacates the stay in this case to enter
this order, allow entry of judgment, and the filing of any post-judgment motions. See
MGO-20-11 at 6–7. However, the parties may move or stipulate to extend any filing
deadlines.
2 In his declaration, Mr. Davis states:
I am relying on Federal case Sealock v. Colorado 218 F.3d 1205 (2000) to prove my
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BACKGROUND
I. Mr. Davis’s Allegations
At issue in this motion is Mr. Davis’s Eighth Amendment claim against Nurse
Erin Diaz-Oatman. On November 5, 2018, Mr. Davis commenced this action
pursuant to 42 U.S.C. § 1983.3 Mr. Davis filed the operative Second Amended
Complaint (“SAC”) on July 19, 2019, and therein, alleges under penalty of perjury
that on or about September 18, 2018:
I woke up with sever[e] chest pains[,] my bed was soaked with sweat
and I was vomiting and I was having a hard time breathing. I was taken
to medical where I was seen by Nurse Erin Diaz who took my vital signs
and she was well aware of my heart trouble[.] My temp was 100.4[,] my
BP 219/195[,] my pulse 98[,] resp 20[,] my chest and throat were
throbbing pressure and pain. And as a result in Nurse Diaz not sending
me to the ER I am now paralyzed from the waist down and I can not
stand or walk I am now confined to a wheelchair for the rest of my life.
If Nurse Diaz would have done an EKG and called the PA I may still be
walking but [for] her deliberate[] indifferen[ce] to inmate medical needs I
would still be walking.4
case cause it is the exact same case as mine[.] The nurses didn’t follow the
nurses[’] protocol they did not do an EKG as is required and did not call the
provider[.] If given the opportunity to be heard in court before a jury I can prove my
case and I have witnesses to call to support my case. Please set this case for trial.
If I’m not given a chance to be heard I’ll never be able to prove my case.
Docket 50 at 1–2.
3 Docket 1 (Complaint). On February 22, 2019, the Court screened Mr. Davis’s claims and
found that, “[c]onstrued liberally, Mr. Davis’s first claim alleging Nurse Diaz treated him with
deliberate indifference presents enough factual detail to move forward.” Docket 9 at 4.
The Court dismissed a second claim with leave to amend. Docket 9 at 8. On March 4,
2019, Mr. Davis filed a First Amended Complaint, maintaining his allegations against
Nurse Diaz-Oatman. Docket 12 at 3.
4 Docket 24 at 3. In its second screening order, the Court found that in the SAC, Mr. Davis
had plausibly alleged a claim that Nurse Diaz-Oatman “was deliberately indifferent to his
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Mr. Davis seeks damages in the amount of $ 20,000,000 and punitive damages in
the amount of $ 20,000,000.5
Nurse Diaz-Oatman now moves for summary judgment on this claim.6
II. Mr. Davis’s Medical Records
Mr. Davis’s medical records reflect a history of cardiac problems and diabetes,
among other issues.7 The records filed by Defendant in support of her motion include
16 EKG traces, 14 of which are dated between August 1, 2018 and October 31, 2018,
and two which are undated.8 Mr. Davis’s medical records also include summaries of
the following medical visits: August 6, 2018 with Registered Nurse (“RN”) Ly (EKG
reviewed);9 August 21, 2018 with RN Parry for chest pain (EKG taken);10 August
medical care, in violation of the Eighth Amendment,” and allowed the SAC to replace his
prior allegations in the earlier complaints. Docket 36 at 4. In the SAC, Mr. Davis also
added claims against Paul Ly for violating his Eight Amendment rights. Docket 24 at 4.
The Court dismissed Mr. Davis’s claims against Nurse Ly for failure to state a claim.
Docket 36 at 4–5.
5 Docket 24 at 8.
6 Docket 45.
7 See, e.g., Docket 46-1 at 16, 19–20.
8 Docket 46-1 at 2–5, 8–9, 21, 23, 28, 34–35, 47, 55–57, 60–61.
9 Docket 46-1 at 58.
10 Docket 46-1 at 48–54. Mr. Davis’s vitals were recorded: his blood pressure (“BP”) was
taken three times (208/84, 198/89, 166/82), his heart rate was taken twice (66 and 65),
and his temperature was recorded as 97.9 degrees Fahrenheit. Docket 46-1 at 48.
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22, 2018 with RN Parry for chest and kidney pain (EKG taken and provider follow-up
ordered);11 August 23, 2018 with RN Gaines for chest pain;12 August 24, 2018 with
RN Howard for chest pain (EKG taken);13 August 25, 2018 at 12:00 PM with HP
Dietrich (EKG reviewed);14 August 25, 2018 at 8:11 PM with RN Diaz-Oatman for
chest pain (EKG taken and provider follow-up ordered);15 August 28, 2018 with Adult
Nurse Practitioner (“ANP”) Ervin for chest pain (EKG reviewed and laboratory tests
ordered);16 September 18, 2018 with Physician’s Assistant (“PA”) Garoutte (referral
to urology ordered);17 and October 31, 2018 with RN Lowe and PA Garoutte for chest
pain.18
11 Docket 46-1 at 42–46. Mr. Davis’s vitals were recorded: BP 175/90 (laying down) and
183/86 (sitting up), heart rate of 80 (laying down) and 72 (sitting up), and temperature of
97.8 degrees Fahrenheit. Docket 46-1 at 42.
12 Docket 46-1 at 29–33. Mr. Davis’s vitals were recorded: BP of 180/79, heart rate of 68,
and temperature of 98.1 degrees Fahrenheit. Docket 46-1 at 42.
13 Docket 46-1 at 25–27. Mr. Davis’s vitals were recorded: BP of 157/67, heart rate of 63,
and temperature of 97.8 degrees Fahrenheit.
14 Docket 46-1 at 24.
15 Docket 46-1 at 15–22. Mr. Davis’s vitals were recorded: BP of 191/87, heart rate of 63,
and temperature of 98 degrees Fahrenheit.
16 Docket 46-1 at 10–14. Mr. Davis’s vitals were recorded: BP of 149/77, heart rate of 95,
and temperature of 98.5 degrees Fahrenheit.
17 Docket 46-1 at 6–7; Docket 46-1 at 62.
18 Docket 46-1 at 1.
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LEGAL STANDARD
I. Jurisdiction
This Court has jurisdiction over Mr. Davis’s 42 U.S.C. § 1983 claim pursuant
to 28 U.S.C. § 1331, which provides for federal question jurisdiction.
II. Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to grant summary
judgment if the movant “shows that there is no genuine dispute as to any material
fact and the movant is entitled to a judgment as a matter of law.” An issue is
“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder
could find for the non-moving party and a dispute is “material” if it could affect the
outcome of the suit under the governing law.19 When considering a motion for
summary judgment, “[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor.”20
The party moving for summary judgment “bears the initial burden of
demonstrating the absence of a genuine issue of fact for trial.”21 However, “[w]hen
the nonmoving party has the burden of proof at trial, the moving party need only point
19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
20 Moldex-Metric, Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir. 2018) (alteration
in original) (quoting Anderson, 477 U.S. at 255).
21 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
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out ‘that there is an absence of evidence to support the nonmoving party’s case.’”22
Once the moving party has met its initial burden, the nonmoving party “may not rest
upon the mere allegations or denials of the adverse party’s pleading,” but must
provide evidence that “set[s] forth specific facts showing that there is a genuine issue
for trial.”23 Thus, although a district court may find that a “complaint stated a claim
under § 1983 at the preliminary stages of the litigation,” a plaintiff cannot rest on
those pleadings at summary judgment and must “affirmatively demonstrate that there
is a genuine issue of material fact for trial.”24
II. Inadequate Medical Care of a Prisoner in Violation of the Eighth
Amendment
“The ‘[u]nnecessary and wanton infliction of pain’ upon incarcerated individuals
under color of law constitutes a violation of the Eighth Amendment.”25 With respect
to medical care, a violation of the Eighth Amendment occurs when a prison official is
deliberately indifferent to a prisoner’s serious medical needs.26 “A medical need is
22 Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
23 Anderson, 477 U.S. at 248.
24 Whitman v. Nesic, 368 F.3d 931, 933–34 (7th Cir. 2004) (dismissing plaintiff’s argument
that “since a district court found his complaint stated a claim under § 1983 at the
preliminary stages of the litigation, his complaint must also survive summary judgment”).
25 McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by
WMX Techs, Inc. v. Miller, 104 F.3d 1133 1136 (9th Cir. 1997) (alteration in original)
(quoting Hudson v. McMillian, 53 U.S. 1, 4 (1992).
26 Id. See also Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“Regardless of how
evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of
action under § 1983.”).
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serious if the failure to treat it will result in ‘“significant injury or the unnecessary and
wanton infliction of pain”; a “prison official is deliberately indifferent to that need if he
‘knows of and disregards an excessive risk to inmate health.’”27 Thus, a showing of
deliberate indifference requires satisfying both an objective and a subjective
component: the prison official must both be aware of facts from which the inference
could be drawn that a substantial risk of harm exists, and actually draw that
inference.28 Accordingly, even if a prison official should have been aware of the risk,
but was not, he or she has not violated the Eighth Amendment, no matter how severe
the risk.29 This subjective approach focuses on “what a defendant’s mental attitude
actually was.”30
“[M]ere negligence in diagnosing or treating a medical condition, without more,
does not violate a prisoner’s Eighth Amendment rights.”31 Moreover, a
27 Peralta v. Dillard, 744 F.3d 1076, 1081–82 (9th Cir. 2004) (en banc) (first quoting Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); then quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)); see also Colwell v. Bannister, 763 F.3d 1060, 1066–67 (9th Cir. 2014).
28 Farmer, 511 U.S. at 837.
29 Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1188 (9th Cir. 2002), overruled on other
grounds by Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016).
30 Farmer, 511 U.S. at 839. Per the Ninth Circuit’s Model Civil Jury Instructions, to prevail
on a claim under the Eighth Amendment based on inadequate medical care, a prisoner
must show: (1) the plaintiff faced a substantial risk of serious harm or had a serious
medical need; (2) the defendant was deliberately indifferent to that risk or medical need;
i.e., “the defendant knew of it and disregarded it by failing to take reasonable measures to
address it”; and (3) the act or failure to act by the defendant caused harm to the plaintiff.
See Ninth Circuit Model Civil Jury Instructions 9.27.
31 McGuckin, 974 F.2d at 1059 (quoting Hutchinson v. United States, 838 F.2d 390, 394
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showing of nothing more than ‘a difference of medical opinion’ as to the
need to pursue one course of treatment over another [i]s insufficient, as
a matter of law, to establish deliberate indifference. In other words,
where a defendant has based his actions on a medical judgment that
either of two alternative courses of treatment would be medically
acceptable under the circumstances, plaintiff has failed to show
deliberate indifference, as a matter of law.32
DISCUSSION
Defendant contends that she is entitled to summary judgment because (1) she
did not treat Plaintiff on September 18, 2018 and therefore could not have been
deliberately indifferent in doing so, and because (2) when she did treat Plaintiff on
August 25, 2018, she provided him with appropriate care.33
Defendant maintains that she did not treat Mr. Davis on September 18, 2018,
as alleged in the SAC.34 She contends that, having searched through Plaintiff’s
medical records surrounding that date, she only treated Plaintiff on August 25,
2018.35 With respect to that visit, Defendant emphasizes that her notes contradict
aspects of Plaintiff’s account of events. Specifically, she maintains that, in contrast
to Plaintiff’s allegations that his vitals were a temperature of 100.4 degrees
Fahrenheit, a BP of 219/195, and a heart rate of 78, Plaintiff’s records show that he
(9th Cir. 1988)).
32 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996), cert. denied, 519 U.S. 1029
(1996) (citing Estelle, 429 U.S. at 107–08).
33 Docket 46 at 9–10.
34 Docket 46 at 9–10.
35 Docket 46 at 10.
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actually had a temperature of 98 degrees Fahrenheit, a BP of 191/87, and a heart
rate of 63.36 Defendant adds that, contrary to Plaintiff’s assertions in the SAC, she
did order an EKG at the visit and she did refer Plaintiff to a physician’s assistant, as
recorded in her notes from that visit.37
Defendant also contends that she provided Plaintiff with appropriate medical
care when she treated him for chest pain on August 25, 2018.38 She maintains that
she “obtained Mr. Davis’ medical history, took Mr. Davis[’] vital signs, asked him a
standard battery of questions to ascertain his current condition, obtained an ECG
from Mr. Davis, and referred him for further care which he received the subsequent
morning.”39 Defendant adds that Mr. Davis denied experiencing acute chest pain at
the August 25, 2018 visit and said that his pain was comparable to what he had been
experiencing in the prior two weeks.40 Citing to a declaration from an expert
witness—Dr. Lawrence, the Chief Medical Officer for the State of Alaska Department
of Corrections41—Defendant contends that “it was appropriate . . . to release Mr.
Davis and refer him to a DOC healthcare professional for further evaluation . . . given
36 Docket 46 at 11–12.
37 Docket 46 at 12.
38 Docket 46 at 13.
39 Docket 46 at 13.
40 Docket 46 at 13.
41 Docket 46-2 at 1, ¶ 5.
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that the ECG . . . produced similar results to ECG’s [sic] previously obtained on
August 21, 22, 23, and 24,” and given that Mr. Davis reported his symptoms were
unchanged and there was no evidence of an acute cardiac event.42 Defendant adds
that her treatment was confirmed as appropriate when tests conducted by ANP Ervin
on August 28, 2018 determined that Plaintiff had not suffered a cardiac event in the
preceding week.43 Defendant concludes that “Mr. Davis’s medical records alone are
enough to show that [Defendant] provided Mr. Davis with appropriate medical
treatment” and are “grounds for summary judgment.”44
Defendant relies on Toguchi v. Chung, where the plaintiffs brought a § 1983
action against prison physicians after their son died in custody as a result of toxic
effects of medications.45 In Toguchi, the plaintiffs’ medical experts agreed that the
treating physician Dr. Chung had failed to evaluate the decedent’s medical condition.
One testified:
Dr. Chung’s failure to evaluate [the decedent’s] actual condition, to
conduct a differential diagnosis that would rule out disease or conditions
other than ‘ice flashbacks,’ led her to disregard the known risks of harm
from the medications she was administering to him in high doses . . . .
Her failure to consider these risks directly and proximately precluded
proper treatment of [the decedent] and . . . eliminated any chance of
42 Docket 46 at 14.
43 Docket 46 at 14–15.
44 Docket 46 at 16 (citing Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)).
45 Toguchi, 391 F.3d at 1055.
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determining the seriousness of his condition or taking appropriate
measures that would have prevented his death.46
Plaintiffs’ other expert added that: “these drugs . . . were prescribed ‘without any
assessment by Dr. Chung of [the decedent’s] actual medical condition and without
regard for possible withdrawal symptoms that would be affecting his heart rate or
potential for arrhythmia.”47
The district court granted summary judgment to Dr. Chung.48 On review, the
Ninth Circuit affirmed, emphasizing, among other things, that the plaintiffs’ experts’
opinion were “predicated upon his position that Dr. Chung administered the
medications without assessing [the decedent’s] actual medical condition . . . [and]
this accusation is one of negligence as opposed to deliberate indifference.”49 The
Circuit added, “[it] does not matter whether Dr. Chung’s assumptions and conclusions
were reasonable. Rather, so long as she was not subjectively aware of the risk that
[the decedent] could be suffering from a drug overdose, and disregarded that risk,
she was not deliberately indifferent.”50 Defendant contends that, like the defendants
in Toguchi, she is entitled to summary judgment.51
46 Id. at 1056 (quoting expert).
47 Id. at 1056 (quoting expert).
48 Id.
49 Id. at 1059.
50 Id. at 1060.
51 Docket 46 at 16.
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In addition to Mr. Davis’s medical records, Defendant provides medical
testimony from Dr. Lawrence that she contends confirms that her treatment of Plaintiff
was appropriate.52 Dr. Lawrence declares that Defendant “acted in conformance with
the standard of care in her treatment of Mr. Davis” when she “received Mr. Davis’
complaints without bias, gathered the appropriate data, and made an appropriate
referral to a DOC healthcare practitioner.”53 Dr. Lawrence adds that “[g]iven Mr.
Davis’ severe medical issues, including diabetes and underlying cardiovascular
disease, [Defendant] acted appropriately by obtaining a medical history, vital signs,
and an ECG of Mr. Davis despite his statement that his chest pain was unchanged
from similar episodes of chest pain he was suffering during the same time period.”54
Dr. Lawrence declares that given that the ECG Defendant obtained was “similar to
previous . . . ECG’s obtained from Mr. Davis” and that “[g]iven the absence of signs
or symptoms of an acute cardiac event, it was appropriate for [Defendant] to refer
Mr. Davis to a DOC healthcare practitioner for further evaluation the following
morning.”55 Dr. Lawrence explains that Mr. Davis’s subsequent medical records—
including tests ordered by ANP Ervin—confirm that Mr. Davis was not suffering a
52 Docket 46 at 16.
53 Docket 46-2 at 3, ¶ 9.
54 Docket 46-2 at 3–4, ¶ 10.
55 Docket 46-2 at 4, ¶¶ 11–12.
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cardiac event on the date that Defendant treated him.56 Dr. Lawrence notes that, in
any event, “paralysis below the waist . . . [is] extremely unlikely to result from the
chest pain Mr. Davis complained of on August 25, 2018.”57 Thus, Defendant
concludes that even if Mr. Davis were able to establish that there was a dispute of
material fact, the dispute “would remain a ‘mere difference of medical opinion,’” which
is not enough to sustain his claim.58
In opposition to Defendant’s motion for summary judgment, Plaintiff cites to
Sealock v. Colorado, maintaining that it is the “exact same” as this case.59 In
Sealock, the then-incarcerated plaintiff woke up in the night, ill and sweating, and
informed an officer that he had “crushing pain in his chest,” trouble breathing, and
that he had been vomiting.60 The facts there, as alleged by the plaintiff, were that he
made repeated entreaties for medical help, but that the prison staff insisted that he
could not go to the infirmary until morning.61 When the plaintiff finally saw a nurse at
6:00 a.m., and told her about his chest pain and trouble breathing, she diagnosed
56 Docket 46-2 at 4, ¶ 13.
57 Docket 46-2 at 4, ¶ 14. Dr. Lawrence explains that “[p]aralysis is usually caused by
neurological disease or dysfunction, which is related to chest pain only in the setting of
extremely rare vascular conditions . . . which Mr. Davis does not have.” Docket 46-2 at 4,
¶ 14.
58 Docket 46 at 16 (quoting Toguchi v. Chung, 391 F.3d 1051, 1055 (9th Cir. 2004)).
59 Docket 50 at 1 (citing 218 F.3d 1205 (10th Cir. 2000)).
60 Sealock, 218 F.3d at 1207–08.
61 Id. at 1208.
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him with the flu and informed him that he had to wait for the physician’s assistant at
8:00 a.m.62 It was unclear whether the nurse mentioned the plaintiff’s chest pain
when she updated the PA, and the PA ordered a shot of Phenergan and bed rest for
the plaintiff.63 The following day around noon, the plaintiff was back at the infirmary,
still suffering from chest pain and struggling to breathe; a different PA administered
an EKG, detected changes in the plaintiff’s heart, gave him nitroglycerin, and sent
him to the hospital, where they determined he had suffered a major heart attack.64
On appeal, the Ninth Circuit reversed the summary judgment that the district
court had granted to one of the officers who delayed getting the plaintiff to the
infirmary; the Circuit held that there was a triable issue as to whether defendant
“knew of and disregarded the excessive risk to [the plaintiff’s] health that could result
from the delay,” given that the plaintiff presented evidence that the defendant was
told the plaintiff might be having a heart attack, saw him exhibiting symptoms of a
heart attack, refused to drive him to the hospital, and warned the plaintiff not to die
on his shift.65 The Ninth Circuit also reversed summary judgment in favor of the first
PA the plaintiff saw, holding that there was a disputed issue of fact about whether or
not the PA knew that plaintiff was suffering chest pains when he gave him Phenergan
62 Id.
63 Id.
64 Id.
65 Id. at 1210–11.
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and sent him back to his cell.66 However, the Ninth Circuit upheld the district court’s
grant of summary judgment to the nurse as she, “[a]t worst, misdiagnosed [the
plaintiff] and failed to pass on information” about his chest pains.67
Plaintiff also contends that Defendant withheld information during discovery
that Defendant relied on in support of her motion for summary judgment.68
Otherwise, Plaintiff maintains that he is ready for trial and that he has witnesses to
call to prove his case.69
As a threshold issue, the Court is not persuaded by Defendant’s argument that
she is entitled to summary judgment on the basis that she did not treat Mr. Davis on
September 18, 2018. Mr. Davis’s SAC alleges that Defendant treated him “[o]n or
about” September 18, 2018, and indeed, Defendant has presented evidence that she
did treat him a few weeks prior on August 25, 2018 for chest pains, as well as on
September 8, 2018 for a fall.70 Mr. Davis has not presented any evidence of any
66Id. at 1212.
67 Id. at 1211.
68 Docket 48 at 1. Defendant denies that she withheld any discovery, and maintains that
she has responded to all of Mr. Davis’s discovery requests. Docket 51 at 3–4.
Specifically, Defendant contends she disclosed all of Plaintiff’s medical records from 2015
through 2019 and medication logs from September 2018. Docket 51 at 3. Defendant
represents that all the medical records relied on in support of her summary judgment
motion were produced to Plaintiff. Docket 51 at 4. She adds that she responded to
Plaintiff’s two interrogatories in October 2019. Docket 51 at 3.
69 Docket 50 at 2.
70 Docket 24 at 3; Docket 46-1 at 15–22. According to Dr. Lawrence, Nurse Diaz-Oatman
also treated Mr. Davis on September 8, 2018, after he fell out of his wheelchair. Docket
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other date(s) on or about September 18, 2018 on which he received treatment from
Defendant. Making all justifiable inferences in Plaintiff’s favor based on the record
for purposes of this motion, his allegations can be understood as arising from
treatment by Defendant for chest pain on August 25, 2018.71
Thus, the question for the Court is whether Defendant has shown that, as a
matter of law, she was not deliberately indifferent to Plaintiff’s medical needs when
she treated him on August 25, 2018, or whether there remain genuine issues of
material fact to be determined at trial. The Court has reviewed the evidence provided
by Defendant, including Mr. Davis’s medical records and the medical testimony from
Dr. Lawrence, as well as Plaintiff’s evidence, which is limited to his sworn allegations
in the SAC.72 In light of the evidence in the record, there is no genuine dispute that
the facts are as follows: on August 25, 2018, Mr. Davis was complaining of chest
46-2 at 3, ¶ 7. Defendant did not provide these records to the Court.
71 Defendant has assumed that the visit referred to in the SAC is her August 25, 2018 visit
with Mr. Davis. Docket 46 at 10. In his opposition, Mr. Davis does not dispute that he was
referring to the August 25, 2018 visit nor does he propose an alternate date. See
generally Docket 50.
72 The Court provided Mr. Davis with a Notice Regarding Motion for Summary Judgment at
Docket 49. The Notice informed Mr. Davis that to oppose summary judgment, he must
provide evidence supporting his claims or defenses, and provided examples of the types
of evidence he can use. Docket 49 at 3–4. However, Mr. Davis did not put forth any
evidence in any form in opposition to Defendant’s motion for summary judgment. See
generally Docket 50.
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pain when he was treated by Defendant.73 Defendant took Mr. Davis’s vitals,74
obtained an EKG,75 and referred Mr. Davis to a provider.76 Defendant confirmed that
Mr. Davis’s pulse was regular, and noted that there was no appearance of acute
distress.77 Although Plaintiff alleges that Defendant did not do an EKG or refer him
to a PA, the medical records directly contradict these allegations. Plaintiff does not
dispute the accuracy of the medical records nor put forth any evidence to support his
allegations. In opposing summary judgment, a plaintiff may no longer rest on the
allegations in his complaint but must “affirmatively demonstrate that there is a
genuine issue of material fact for trial.” 78 The Court finds there is no genuine question
as to whether Defendant provided Plaintiff with an EKG or a referral.
In light of the foregoing, Plaintiff’s claim of deliberate indifference is tethered to
his remaining allegations that Defendant failed to send Plaintiff to the emergency
room and that this failure led to Plaintiff’s paralysis or otherwise caused him harm
73 Docket 46-1 at 15, 20.
74 Docket 46-1 at 15.
75 Docket 46-1 at 16.
76 Docket 46-1 at 16, 22.
77 Docket 46-1 at 15–16.
78 Whitman v. Nesic, 368 F.3d 931, 933–34 (7th Cir. 2004) (dismissing plaintiff’s argument
that “since a district court found his complaint stated a claim under § 1983 at the
preliminary stages of the litigation, his complaint must also survive summary judgment”).
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Case No. 3:18-cv-00264-SLG, Davis v. Diaz
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and suffering.79 Even assuming for purposes of this motion that Plaintiff’s medical
need was serious,80 the Court finds that the record is devoid of evidence that
Defendant was deliberately indifferent to Plaintiff’s medical needs, i.e. that she was
aware of a risk of paralysis or other harm to Plaintiff and disregarded that risk when
she did not send him to the hospital.81 Plaintiff has not provided any such evidence;82
indeed, the record shows that Defendant was aware of Plaintiff’s chest pains, took
an EKG, evaluated whether he was in acute distress, and referred him to a provider.83
Defendant provided expert medical testimony that this was an appropriate course of
action given Plaintiff’s symptoms and cardiac history.84 Thus, unlike the defendants
in Sealock, Defendant did not fail to assess Plaintiff’s chest pains nor did she
disregard symptoms or complaints of a heart attack; indeed, Defendant provided
79 Docket 24 at 3.
80 Defendant provided evidence in the form of medical records confirming that Mr. Davis
had not suffered a heart attack on the date that she treated him. Docket 46-1 at 14 and
Docket 46-2 at 4, ¶ 13.
81 See Peralta v. Dillard, 744 F.3d 1076, 1081–82 (9th Cir. 2014) (en banc); see also
Colwell v. Bannister, 763 F.3d 1060, 1066–1067 (9th Cir. 2014).
82 Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may
. . . consider the fact undisputed for purposes of the motion.”).
83 Docket 46-1 at 15–16, 22.
84 Docket 46-2 at 3–4, ¶¶ 9–11 (“In my professional opinion, Nurse Diaz-Oatman acted in
conformance with the standard of care in her treatment of Mr. Davis. . . . [She] received
Mr. Davis’ complaints without bias, gathered the appropriate data, and made an
appropriate referral . . . . [She] acted appropriately by obtaining a medical history, vital
signs, and an ECG . . . .”).
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evidence that Plaintiff was not, in fact, having a heart attack when she treated him.
Moreover, Defendant provided medical testimony that Plaintiff’s paralysis was
“extremely unlikely to result from the chest pain” he was suffering from on August 25,
2018.85 Plaintiff has not disputed any of Defendant’s evidence and has not provided
evidence of a risk he suffered on the day in question, or of Defendant’s knowledge
of or disregard for such risk. Based on the record before the Court, and with all
justifiable inferences drawn in Plaintiff’s favor, the Court finds that Defendant was not
deliberately indifferent to Plaintiff’s medical needs and that Defendant is entitled to
judgment as a matter of law.
Finally, although Plaintiff contends that Defendant relied on withheld discovery
to support her motion for summary judgment, Defendant has represented that she
provided Plaintiff with the medical records relied on in support of this motion and filed
with the Court her responses to Plaintiff’s discovery requests. Plaintiff did not identify
what evidence was withheld and therefore did not offer an explanation as to why he
was unable to present facts essential to justify his opposition.86
85 Docket 46-2 at 4, ¶ 14.
86 Fed. R. Civ. P. 56(d)(2) provides that, where facts are unavailable to the nonmovant, the
court can allow more time or discovery where the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition.”
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Case No. 3:18-cv-00264-SLG, Davis v. Diaz
Order re Motion for Summary Judgment
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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s Motion
for Summary Judgment at Docket 45 is GRANTED and Plaintiff’s Motion to Dismiss
at Docket 48 is DENIED. All claims against Defendant are hereby dismissed with
prejudice.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 15th day of April, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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