Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toavs v. Bannister

United States District Court, D. Nevada

March 31, 2015

BERTON G. TOAVS, Plaintiff,
ROBERT BANNISTER, et al., Defendants.


MIRANDA M. DU, District Judge.


Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb ("R&R") (dkt. no. 73) relating to Defendants' motion for summary judgment (dkt. no. 47) and Plaintiff's cross-motion for summary judgment (dkt. no. 60). Plaintiff filed a timely objection on February 17, 2015 (dkt. no. 76) and Defendants filed a response (dkt. no. 77). Plaintiff filed a motion to strike Defendants' response (dkt. no. 78) and also filed a response to Defendants' response (dkt. no. 80).

First, with regard to Plaintiff's motion to strike, Defendants concede that they filed their response to Plaintiff's objections one day late. (Dkt. no. 79.) Defendants provide no reason for the late filing but argue that Plaintiff was not prejudiced. Defendants are responsible for obeying the Court's filing deadlines or requesting an extension. The Court will therefore grant Plaintiff's motion to strike and strike Defendants' response. As Defendants point out, LR IB 3-2 governs the filing procedure for objections to a magistrate judge's report and recommendation. That rule also states that an objection may be filed and a response to that objection may be filed, but it does not allow for any further response. Plaintiff has filed a response to Defendants' response to Plaintiff's objections. (Dkt. no. 80.) Plaintiff has not requested, nor been given permission, to file an additional response and it is procedurally improper pursuant to LR IB 3-2. It is therefore stricken as well.[1]

With those issues resolved, the Court turns its attention to Plaintiff's objections.


The facts of this case are thoroughly set out in the R&R. At all relevant time, Plaintiff was an inmate in custody of the Nevada Department of Corrections ("NDOC"). (Dkt. no. 5.) The allegations in Plaintiff's Complaint concern events that occurred while Plaintiff was housed at Northern Nevada Correctional Center ("NNCC"). (Id.) Plaintiff is pro se. He asserts claims under 42 U.S.C. § 1983 for deliberate indifference to his medical needs in violation of the Eighth Amendment.


This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1).

"The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Id. at 250-51. "The amount of evidence necessary to raise a genuine issue of material fact is enough to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). Courts must also liberally construe documents filed by pro se litigants. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir.1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, " Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts.'" Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.


In the R&R, the Magistrate Judge first determined that some of the Complaint's claims were outside of the applicable statute of limitations. He thus restricted the Complaint to the following claims that allegedly took place in the two year period preceding the filing of the Complaint: "(1) that in November 2010, he began to experience severe pain, numbness and a lack of mobility in his hands and arms and Defendants ignored his requests until he filed a lawsuit in state court; (2) Defendants eventually approved the necessary surgery, but five days after, they knowingly deprived him of pain medication in contravention of his surgeon's orders, and he was denied requests for physical therapy which would have maximized his recovery; (3) he began to experience extreme pain and lack of mobility a year after this surgery, and his requests for medical care were ignored; (4) his surgeon requested one more surgical procedure, but Defendants would not approve it; (5) (from October 2010 forward) Dr. Bannister had a policy of encouraging staff to deprive inmates of care due to the cost or the inmate's particular conviction, and also failed to train and supervise his employees; (6) Dr. Bannister, Dr. Mar and Dr. Johns, as members of the Utilization Review Panel ("URP"), purposefully deprived him of surgeries (from October 16, 2010 forward) due to the cost; (7) John Peery oversaw the nursing department, and under his direction, sick call appointments rarely were scheduled, and when they did occur, they were set out too far; and (8) John Peery ignored his requests for a visit with the eye doctor despite doctors' orders which acknowledged a change in his vision following his last surgery." (Dkt. no. 73 at 6-7.) Plaintiff does not object to the R&R's determination of the applicable statute of limitations period and the limiting of the Complaint's allegations to said period. The Court will therefore adopt the Magistrate Judge's determination as to the scope of Plaintiff's claims.

The R&R then considered all the evidence offered by the parties as it relates to each of the viable claims and determined that Plaintiff's cross-motion for summary judgment should be denied, and Defendants' motion for summary judgment should be granted as to all claims except for Plaintiff's allegation that John Peery ignored his requests for a visit with the eye doctor despite doctors' orders which acknowledged a change in his vision following his last ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.