BROWN v. DZURENDA (2020)

ORDER OF AFFIRMANCE

Terry Gene Brown appeals from a district court order granting summary judgment in a civil rights matter. Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.

Brown, an inmate in the custody of the Nevada Department of Corrections, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, asserting that respondents were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Specifically, Brown suffers from glaucoma and alleges that respondents failed to provide his prescribed glaucoma medication, despite his requests for treatment, from the time he arrived at High Desert State Prison in 2014 until early 2017. Brown alleges that this delay in treatment resulted in the worsening of symptoms and additional pain and suffering. The district court granted summary judgment in favor of respondents, concluding that Brown failed to present any evidence of deliberate indifference, that the respondents lacked personal participation in the alleged constitutional deprivation, and that even if Brown could demonstrate deliberate indifference, respondents were entitled to qualified immunity. This appeal followed.

On appeal, Brown challenges the district court's grant of summary judgment asserting that respondents were deliberately indifferent to his medical needs and that each respondent personally participated in the deprivation of his constitutional rights. This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.

Deliberate indifference to a prisoner's serious medical need can constitute an Eighth Amendment violation. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). The indifference may be shown by a prison doctor's response to the prisoner's needs, or by prison officials intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed. Id. at 104-05. To demonstrate a response to a serious medical need was deliberately indifferent, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

But deliberate indifference requires more than an “ordinary lack of due care for the prisoner's interests or safety. Rather, the official must actually know of and disregard an excessive risk to inmate health or safety.” Butler v. Bayer, 123 Nev. 450, 459, 168 P.3d 1055, 1062 (2007) (citing Farmer v. Brennan, 511 U.S. 825, 835, 837 (1994) (internal quotation marks omitted)); see also Jett, 439 F.3d at 1096 (explaining that an inadvertent or negligent failure to provide adequate medical care alone is insufficient). And a delay in providing a prisoner with treatment alone does not constitute an Eighth Amendment violation. Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989).

Here, Brown contends that respondents were deliberately indifferent to his medical needs based on a delay in treatment. We agree that, taking the evidence in the light most favorable to Brown, it appears that Brown waited an inordinate amount of time to be seen by the optometrist. However, although Brown asserts that he was harmed by the delay, he has produced no evidence demonstrating that his alleged injuries were caused by the delay in treatment. See Jett, 439 F.3d at 1096; Wood, 121 Nev. at 730, 121 P.3d at 1030-31. Under these circumstances, Brown has failed to demonstrate that the district court erred in granting summary judgment. See Jett, 439 F.3d at 1096; Estelle, 429 U.S. at 104-05.

Accordingly, we

ORDER the judgment of the district court AFFIRMED.¹

FOOTNOTES

1.   With regard to Brown's claims against respondents in their official capacities, summary judgment was likewise appropriate as states and state employees acting in their official capacities are not persons under 42 U.S.C. § 1983 and therefore may not be sued in state courts under the federal civil rights statutes. See Craig v. Donnelly, 135 Nev. 37, 40, 439 P.3d 413, 415-16 (Ct. App. 2019). To the extent Brown asserts that he intended to pursue a state tort claim pursuant to NRS 41.0322, Brown failed to properly name the State on relation of the particular department whose actions gave rise to the suit as required by NRS 41.031(2). See id. at 39-40, 439 P.3d at 415. Moreover, Brown conceded below that the State of Nevada should be granted summary judgment. Thus, to the extent Brown could be deemed to have presented a claim under NRS 41.0322, we affirm the grant of summary judgment on that claim. Insofar as Brown raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.