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Wilgus v. Bannister

United States District Court, D. Nevada

March 31, 2015

BRUCE 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") relating to Plaintiff's Motion for Partial Summary Judgment (dkt. no. 27) and Defendants' Cross-Motion for Summary Judgment (dkt. no. 30). (Dkt. no. 42.) Plaintiff has filed an objection to the R&R (dkt. no. 43) and Defendants have filed a response (dkt. no. 47).


This case arises from conduct that allegedly occurred during Plaintiff's incarceration from June 8, 2011, to February 2, 2012, at three correctional institutions within the Nevada Department of Corrections: Northern Nevada Correctional Center ("NNCC"), Humboldt Conservation Camp ("HCC"), and Lovelock Correctional Center ("LCC").[1] Plaintiff challenges two types of conduct: (1) the entry of a false escape charge in his records that led to his transfer from HCC; and (2) the delay and inadequate medical care at LCC and NNCC between July 18, 2011, and February 2, 2011.[2]

The following facts are taken from Plaintiff's Amended Complaint. (Dkt. no. 6.) On July 12, 2011, about a month after Plaintiff began to serve his sentence at NNCC, Plaintiff was transferred to HCC, a minimum custody camp "per Classification Committee results." ( Id. at 14.) On July 18, 2011, Plaintiff's fiancee, Tina Atkinson, called defendant Steve Suwe relating to "program information and parole procedures" on Plaintiff's behalf.[3] ( Id. at 15; dkt. no. 27 at 8.) After Atkinson provided Suwe with Plaintiff's name and ID, Suwe became rude and told Atkinson that Plaintiff "is an escapee and that he should not be in camp" and that Suwe would "fix that right now!" (Dkt. no. 6 at 15.) Plaintiff "was forcefully detained" and "transferred from HCC to LCC" after Suwe changed Plaintiff's records to reflect the false escape charge, "which caused a serious injury to his left shoulder."[4] ( Id. ) Plaintiff made attempts to resolve this false escape charge, including requesting a classification review and filing grievances. Plaintiff later received a response stating that a date was entered incorrectly - the escape incident had occurred in 2003 but had been incorrectly entered as occurring in 2006. On November 9, 2011, Plaintiff had a classification review but was denied minimum security.

After his transfer to LCC, Plaintiff sought treatment for his shoulder injury, along with other medical and dental issues, [5] and while he was told he would be transferred to NNCC for treatment, he was not transferred for over two months. There continued to be delays even after Plaintiff got to NNCC, and he was not seen for his shoulder pain until November 2, 2011. At that appointment, Dr. Long was concerned about "the winging of the scapula" and recommended an MRI. (Dkt. no. 6 at 24.) Plaintiff had an MRI performed on his shoulder on December 26, 2011. During his January 4, 2012, appointment, Dr. Gedney made notes of the MRI results and of his shoulder limitation and prescribed medications for joint relief and recommended shoulder exercise.

Plaintiff asserts claims under 42 U.S.C. § 1983 against nineteen defendants. (Dkt. no. 6 at 3-13.) He alleges violations of his rights under the Fourth Amendment (Counts I-III), Eighth Amendment (Counts IV, VI-IX) and Fifth and Fourteenth Amendments (Count V). Plaintiff moved for partial summary judgment and Defendants moved for cross summary judgment. (Dkt. nos. 27, 30.) The Magistrate Judge recommends denying Plaintiff's motion and granting Defendants' motion. (Dkt. no. 42.)


A. Review of the Magistrate Judge's R&R

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). Where a party fails to object, however, the court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection."). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.Supp.2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).

B. Summary Judgment Standard

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 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." Fed.R.Civ.P. 56(a); see 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. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). "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).

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 ...

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