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Hunt v. Johns

United States District Court, D. Nebraska

November 20, 2017

LARRY HUNT, Plaintiff,
v.
RON JOHNS, as an Individual and in his capacity as Director of the Scotts Bluff County Adult Detention Center, SCOTTS BLUFF COUNTY, MONUMENT VISION, PC, OREGON TRAIL EYE CENTER, PC, and JOHN DOES 1-99, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Larry Hunt brings this action asserting claims under 42 U.S.C. § 1983 against defendants Ron Johns, Scotts Bluff County, and John Does 1-99 for these defendants' policy or custom of ignoring inmates' serious medical needs-in this case, an eye condition that has allegedly severely impaired Plaintiff's vision-and failure to train jail employees to recognize serious medical needs. (Filing No. 1 at CM/ECF pp. 14-17.) Plaintiff asserts state-law negligence claims against these defendants, as well as against an optometry practice, Monument Vision, PC (“Monument”), and an ophthalmology practice, Oregon Trail Eye Center, PC. (Filing No. 1 at CM/ECF pp. 11-14.) Monument has filed a Motion for Summary Judgment (Filing No. 29) as to the only claim asserted against it-professional negligence under Nebraska law.[1] Plaintiff has not responded to Defendant's motion.

         Motion for Summary Judgment Filed by Monument Vision, PC

         Plaintiff alleges that Monument's medical staff was professionally negligent when it failed to “impress immediately upon jail staff that the Plaintiff's detached retina, diagnosed by Monument Vision on April 20, 2015, was a serious medical need that warranted immediate attention from an Ophthalmologist” and when it failed to “refer the Plaintiff to an Ophthalmologist for immediate further care.” (Filing No. 1 at CM/ECF pp. 12-13.) Monument moves for summary judgment on this claim, arguing that under Nebraska law, Plaintiff must proffer expert testimony to support his action for professional negligence, which he has failed to do; that Monument has filed the affidavits of two optometrists who state that Dr. Schneider at Monument did not violate the applicable standard of care in its treatment of Plaintiff; and that a defendant is entitled to summary judgment when a plaintiff fails to prove, by expert testimony, any departure from the recognized standard of care. (Filing No. 30, Br. Supp. Def.'s Mot. Summ. J.)

         Because Plaintiff did not respond to Monument's motion for summary judgment, Monument's statement of undisputed material facts is considered admitted. NECivR 56.1(b)(1).

         1. Dr. Robert S. Vandervort, O.D., F.A.A.O., is a board-certified optometrist, and Dr. Jill A. Schneider, O.D., was the president and owner of Monument Vision, P.C., who treated Plaintiff. Both optometrists have filed affidavits in support of Monument's motion for summary judgment. (Filing No. 31.)

         2. Both Dr. Vandervort and Dr. Schneider are familiar with the generally recognized standards of care applicable to treating patients, including Plaintiff, at all relevant times, including April 20, 2015. (Filing No. 31-1, Aff. R. Vandervort ¶ 5; Filing No. 31-3, Aff. J. Schneider ¶ 5.)

         3. These standards of care are applicable to optometrists in the relevant geographical area, such as Dr. Schneider and Monument Vision. (Filing No. 31-1, Aff. R. Vandervort ¶ 5; Filing No. 31-3, Aff. J. Schneider ¶ 6.)

         4. Both Dr. Vandervort and Dr. Schneider are familiar with the facts of Plaintiff's medical care, including the care rendered by Dr. Schneider and Monument Vision on April 20, 2015. (Filing No. 31-1, Aff. R. Vandervort ¶ 4; Filing No. 31-3, Aff. J. Schneider ¶ 7.)

         5. In examining, testing, and treating Plaintiff, Monument Vision and Dr. Schneider did not depart from the appropriate standards of care. (Filing No. 31-1, Aff. R. Vandervort ¶ 5; Filing No. 31-3, Aff. J. Schneider ¶ 8.)

         Standard of Review

          “A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion” Fed.R.Civ.P. 56(a).

         In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Gray v. FedEx Ground Package Sys., Inc., 799 F.3d 995, 999 (8th Cir. 2015).

         The moving party bears the burden of showing there are no genuine issues of material fact. See Celotex Corp. v. Catrett,477 U.S. 317, 322 (1986). This burden “may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id. at 325. The burden then shifts to the nonmoving party, who “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256 (1986). If the nonmoving party fails “to establish the existence of an element ...


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