United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Otake United States District Judge
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. 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
reasons set forth below, the Court GRANTS IN PART AND DENIES
IN PART the Motion.
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.
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.
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.
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
September 6, 2018, Defendants filed the instant Motion for
Summary Judgment. Doc. No. 154.
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).
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.
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.
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
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.
Statute of Limitations
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