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Baker v. Gaspar

United States District Court, D. Hawaii

February 28, 2019



          Jill A. Otake United States District Judge


         This action arises out of the medical treatment Plaintiff Vernon Baker (“Plaintiff”) received while imprisoned at Oahu Community Correctional Center (“OCCC”). On March 20, 2014, another inmate struck Plaintiff and injured his jaw. In his Third Amended Complaint (“TAC”), Plaintiff alleges that he received untimely and inadequate medical treatment for his injury. Plaintiff asserts Hawai‘i state law negligence claims and federal constitutional claims against Defendants Evelyn Gaspar, RN; Lisa Ogata, RN; Louis Semeatu, RN; Courtney Mori, RN; Dr. Karl Ayer; and Dr. Francis Hamada.[1] Nurse Semeatu, Nurse Mori, Dr. Ayer, and Dr. Hamada (collectively, “Defendants”) move for summary judgment as to Plaintiff's 42 U.S.C. § 1983 claims (Counts I and II) against Nurse Semeatu, Nurse Mori, Dr. Ayer, and Dr. Hamada and as to Plaintiff's negligence claims against Nurse Semeatu, Nurse Mori, and Dr. Ayer (Count III).[2]

         For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART the Motion.


         A. Factual History

         On the evening of March 20, 2014, another inmate struck Plaintiff at OCCC. Doc. No. 57 at ¶ 1. Plaintiff was taken to OCCC's medical module where he complained of severe mouth and throat pain. Id. Nurse Gaspar took a photo of Plaintiff's face, gave him an ice pack, and instructed him to take the naproxen that he already owned. Id. Plaintiff returned to his module, but two and a half hours later he again complained of pain and asked to go to the hospital. Id. at ¶ 2. Plaintiff returned to the medical module where Nurse Semeatu evaluated him. Id. According to Plaintiff, he begged to be hospitalized but Nurse Semeatu laughed at him and told him there was nothing wrong with him. Id. Plaintiff returned to his module and at 1:30am, he asked the Adult Corrections Officer (“ACO”) to call medical and request hospitalization again. Id. at ¶ 2. Nurse Semeatu denied the request and told the ACO that Plaintiff could report to sick call the next day. Id. at ¶ 3.

         From March 21, 2014 to March 28, 2018, Plaintiff reported to sick call multiple times and complained of shooting pain in his throat and jaw, trouble eating and sleeping, weight loss, severe headaches, a lump inside his jaw, and a “click[ing]” of his larynx. Pl.'s Concise Statement of Facts (“CSF”), Exhibit A (“Pl.'s Decl.”) at ¶¶ 23-35. On March 28, 2014, Dr. Ayer evaluated Plaintiff's jaw. Pl.'s Decl. at ¶¶ 36-37. Plaintiff alleges that Dr. Ayer was short with him and did not listen to his description of symptoms. Id. at ¶ 38. Plaintiff requested an x-ray and Dr. Ayer referred him to the on-site dentist, Dr. Hamada. Id. at ¶¶ 39-40. The x-ray revealed a fractured jaw, so Dr. Hamada prescribed antibiotics, referred Plaintiff to a Queen's Medical Center (“QMC”) dentist, and told him he would receive a “soft diet.” Id. at ¶¶ 44, 46. Plaintiff alleges that Dr. Hamada also told him wiring of his jaw was not necessary because eight days had passed and the bones were already fusing out of place. Id. at ¶ 47. Defendants contend that Dr. Hamada did not say this, Defs.' CSF, Ex. 5 at ¶ 7, and that in fact Plaintiff's injury did not require jaw wiring, Defs.' CSF, Ex. 7 at 2-3. Plaintiff asked Dr. Hamada for pain medication because the naproxen was not working, and Dr. Hamada agreed to discuss it with Dr. Ayer. Pl.'s Decl. at ¶ 48. Plaintiff awaited Dr. Hamada's response in the waiting room but after being advised that his appointment was over, he returned to his module. Id. at ¶¶ 49-52.

         Over the next few weeks, Plaintiff continued to experience pain and did not receive a soft food diet. Id. at ¶¶ 53, 55-58. He filled out medical slips requesting a soft food diet and medication, and was told he would see a doctor soon but was not given a date. Id. at ¶ 58. On June 9, 2014, Plaintiff submitted a medical slip requesting a doctor's appointment and Nurse Mori denied the request, saying Plaintiff had refused an appointment with Dr. Ayer. Id. at ¶¶ 75-76. Plaintiff claims this is not true, admitting only that he had filed a grievance against Dr. Ayer and said he would rather wait for another doctor. Id. at ¶ 77. On September 12, 2014, Plaintiff saw a doctor and received an ultrasound, which revealed a neck abnormality. Id. at ¶ 79. Plaintiff was later prescribed pain medication and physical therapy. Id. at ¶¶ 85-86. He continues to experience neck and jaw pain but is not receiving physical therapy or pain medication, other than his own naproxen. Id. at ¶¶ 93-94.

         B. Procedural History

         Plaintiff filed the TAC on March 26, 2016, Doc. No. 57, asserting the following claims against Nurse Gaspar, Nurse Semeatu, Nurse Ogata, Nurse Mori, Dr. Ayer, and Dr. Hamada: (1) violations of § 1983 (Counts I and II) and (2) negligence (Count III). Plaintiff prays for pain and suffering damages and injunctive relief to treat his ongoing injury. Doc. No. 57 at 8.

         On September 6, 2018, Defendants filed the instant Motion for Summary Judgment. Doc. No. 154.


         Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The Court must view the facts in the light most favorable to the nonmoving party. State Farm Fire & Cas. Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989).

         Once the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec., 809 F.2d at 630; Fed.R.Civ.P. 56(c). The opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The nonmoving party cannot stand on its pleadings, nor can it simply assert that it will be able to discredit the movant's evidence at trial. T.W. Elec., 809 F.2d at 630; Blue Ocean Pres. Soc'y v. Watkins, 754 F.Supp. 1450, 1455 (D. Haw. 1991).

         If the nonmoving party fails to assert specific facts beyond the mere allegations or denials in its response, summary judgment may be entered. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884 (1990); Fed.R.Civ.P. 56(e). There is no genuine issue of fact if the opposing party fails to offer evidence “sufficient to establish the existence of an element essential to that party's case.” Celotex, 477 U.S. at 322.

         A defendant may assert affirmative defenses by a motion for summary judgment. Fed.R.Civ.P. 56. The motion for summary judgment will be granted when “it raises at least one legally sufficient defense to bar the plaintiff's claim and no triable issue of fact relates to that defense.” SEC v. Seaboard Corp., 677 F.2d 1301, 1308 (9th Cir. 1982); see, e.g., Dam v. Gen. Elec. Co., 265 F.2d 612, 614 (9th Cir. 1958); Benjamin v. W. Boat Bldg. Corp., 475 F.2d 1085, 1086 (9th Cir. 1973). “If the moving party's defense is legally inadequate or would require the adjudication of fact issues, the motion will be denied.” Seaboard, 677 F.2d at 1308; U.S. v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990).


         Defendants move for summary judgment on Plaintiff's 42 U.S.C. § 1983 claims against Nurse Semeatu, Nurse Mori, Dr. Ayer, and Dr. Hamada as well as Plaintiff's negligence claims against Nurse Semeatu, Nurse Mori, and Dr. Ayer. Defendants move for summary judgment on the following grounds: (1) claims against Nurse Semeatu are barred by the statute of limitations; (2) Defendants were not deliberately indifferent to Plaintiff's medical needs, as required for a § 1983 claim; (3) Defendants are entitled to qualified immunity from Plaintiff's § 1983 claims; (4) Plaintiff does not have the requisite expert testimony to establish negligence claims against Nurse Semeatu, Nurse Mori, or Dr. Ayer; and (5) Nurse Semeatu and Nurse Mori are entitled to qualified privilege from Plaintiff's negligence claims.

         A. Statute of Limitations

         Defendants argue that Plaintiff's § 1983 and negligence claims against Nurse Semeatu are barred by the two-year statute of limitations because Nurse Semeatu treated Plaintiff on March 21, 2014, and the clerk of court recorded Plaintiff's original complaint as filed on March 24, 2016. Mot. at 9. Plaintiff argues that the complaint was considered filed on ...

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