2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 SHAWN FLYNN, Case No. 2:19-cv-00213-MMD-CLB

7 Plaintiff, ORDER v. 8 JAMES DZURENDA, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiff Shawn Flynn, who is formerly an inmate in the custody of the Nevada 13 Department of Corrections (“NDOC”), brings this action under

against 14 Defendants Romeo Aranas, Gregory Bryan, Charles Daniels, James Dzurenda, Bob 15 Faulkner, Henry Landsman, Michael Minev, Harold Wickham, and Brian Williams. (ECF 16 Nos. 6, 61.) Before the Court is a Report and Recommendation (“R&R”) of United States 17 Magistrate Judge Carla L. Baldwin (ECF No. 93), recommending the Court grant 18 Defendants’ motion for summary judgment (ECF No. 85).1 Plaintiff filed an objection to 19 the R&R.2 (ECF No. 94 (“Objection”).) Because the Court agrees with Judge Baldwin’s 20 analysis as to Defendants’ Motion and because Plaintiff in his Objection continues to fail 21 to point to supporting evidence to meet his burden, the Court will accept and adopt the 22 R&R in full. Accordingly, the Court will grant Defendants’ Motion. 23 II. BACKGROUND 24 The Court incorporates by reference Judge Baldwin’s description of the case’s 25 factual background and procedural history provided in the R&R, which the Court adopts. 26 27 1Plaintiff responded (ECF No. 90), and Defendants replied (ECF No. 91). 28 2Defendants did not respond to Plaintiff’s Objection, and the deadline for any 2 III. DISCUSSION 3 The Court first addresses Plaintiff’s emotional distress claims, then considers 4 Plaintiff’s objections to Judge Baldwin’s recommendation as to his Eighth Amendment 5 claim for deliberate indifference to a serious medical need. 6 A. Emotional Distress Claims 7 Judge Baldwin recommends the Court grant Defendants’ Motion as to Plaintiff’s 8 claims of intentional infliction of emotional distress and negligent infliction of emotional 9 distress because Plaintiff in his opposition to Defendants’ Motion did not provide any 10 evidence of his alleged severe emotional distress, except to say that he “will testify at 11 trial,” which is insufficient to meet his burden at summary judgment. (Id. at 16.) Plaintiff 12 does not address nor object to Judge Baldwin’s recommendation as to his emotional 13 distress claims in his Objection. (ECF No. 94.) Because there is no objection as to these 14 claims, the Court need not conduct de novo review. See United States v. Reyna-Tapia, 15

(9th Cir. 2003) (“[D]e novo review of the magistrate judges’ findings 16 and recommendations is required if, but only if, one or both parties file objections to the 17 findings and recommendations.”) (emphasis in original). The Court is satisfied that Judge 18 Baldwin did not clearly err and therefore adopts Judge Baldwin’s recommendation that 19 Defendants’ motion for summary judgment be granted as to Plaintiff’s emotional distress 20 claims. 21 B. Deliberate Indifference to a Serious Medical Need Claim 22 As to Plaintiff’s Eighth Amendment claim, Judge Baldwin recommends that 23 Defendants’ Motion be granted because Defendants have submitted evidence showing 24 that they “affirmatively monitored [Plaintiff]’s Hep-C” and therefore have met their initial 25 burden of showing the absence of a genuine issue of material fact, while Plaintiff has 26 failed to meet his burden because he has not provided evidence that a delay in treatment 27 for his Hep-C was the cause of any damage or that he in fact has suffered damage nor 28 that Defendants knew of an excessive risk to his health and disregarded that risk. (ECF 2 “[t]here appears to be no dispute that Defendants’ yearslong delay in treating [Plaintiff] 3 caused him to develop cirrhosis” (ECF No. 94 at 5.); (2) Plaintiff met his burden by 4 attaching to his opposition to Defendants’ Motion the deposition transcripts of Dr. Martin 5 Naughton and Dr. Michael Minev and the expert report of Dr. Amanda Cheung (id. at 6.); 6 and (3) Plaintiff and others, such as Dr. Cheung, Dr. Naughton, and Dr. Kevin Kuriakose 7 who allegedly diagnosed Plaintiff with cirrhosis, would testify at trial in support of Plaintiff’s 8 position (id. at 6-7). 9 The Court finds all of Plaintiff’s objections unpersuasive. First, it is in fact clearly 10 disputed whether Defendants’ alleged delay in treatment caused Plaintiff to develop 11 cirrhosis, and as Judge Baldwin found and the Court agrees, Plaintiff has failed to provide 12 any evidence to support his assertions that he developed cirrhosis nor that an alleged 13 delay in treatment caused such harm. (ECF No. 93 at 11 n.3.) Plaintiff baldly asserts in 14 multiple instances that he developed cirrhosis and that medical records show that, but he 15 fails to cite to or provide any medical reports to support that claim. (ECF No. 94 at 4-8.) 16 Second, while it is true that Plaintiff attached several exhibits to his opposition to 17 Defendants’ Motion, as Judge Baldwin found, those exhibits largely focus on treatment of 18 Hep-C and NDOC’s policy and do not address whether Plaintiff specifically suffered any 19 harm because of an alleged delay in treatment. (ECF No. 93 at 6-7; ECF Nos. 90-2, 90- 20 3, 90-4.) Third, an intent to call supporting witnesses does not, on its own, constitute 21 evidence that may be considered on summary judgment. See Fed. R. Civ. Proc. 22 56(c)(1)(A). And once again, although Plaintiff claims that Dr. Kuriakose diagnosed him 23 with cirrhosis, he fails to point to or provide any evidence to support that claim. (ECF No. 24 94 at 7.) 25 The Court therefore agrees with Judge Baldwin’s determination that Plaintiff has 26 failed to meet his burden in establishing a genuine issue of material fact as to whether 27 Defendants deliberately denied, delayed, or intentionally interfered with his medical 28 treatment and whether such a delay caused harm. See Hallet v. Morgan,

, 1 || 744 (9th Cir. 2022) (explaining “deliberate indifference” prong); Lemire v. California, 726 2 || F.3d 1062, 1074 (9th Cir. 2013) (requiring causation to establish deliberate indifference); 3 || Jett v. Penner,

(9th Cir. 2006) (requiring a showing of harm caused 4 || by the indifference). Accordingly, the Court adopts Judge Baldwin's recommendation that 5 || Defendants’ Motion be granted as to Plaintiff's Eighth Amendment claim for deliberate 6 || indifference to a serious medical need.* 7 || IV. CONCLUSION 8 The Court notes that the parties made several arguments and cited to several 9 || cases not discussed above. The Court has reviewed these arguments and cases and 10 || determines that they do not warrant discussion as they do not affect the outcome of the 11 || issues before the Court. 12 It is therefore ordered that Plaintiffs objection (ECF No. 94) to the Report and 13 || Recommendation of U.S. Magistrate Judge Carla L. Baldwin is overruled. 14 It is further ordered that Judge Baldwin’s Report and Recommendation (ECF No. 15 || 93) is accepted and adopted in full. 16 It is further ordered that Defendants’ motion for summary judgment (ECF No. 85) 17 || is granted. 18 It is further ordered that the Clerk of Court enter judgment in Defendants’ favor and 19 || close this case. 20 DATED THIS Day of November 2022.

22 MIRANDA M. DU 23 CHIEF UNITED STATES DISTRICT JUDGE 24 25 26 27 3Just as Judge Baldwin declined to address Defendants’ personal participation or qualified immunity arguments because she found that Plaintiff's claims fail on the merits, 28 || the Court similarly need not—and does not—address those arguments for the same reasons. (ECF No. 93 at 16 n.4.)