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Deverna v. State

United States District Court, D. Nevada

February 21, 2017

CHARLES WAYNE DEVERNA, JR., Plaintiff,
v.
STATE OF NEVADA, et. al., Defendants.

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge William G. Cobb (ECF No. 32) relating to Defendant's motion to dismiss or, alternatively, motion for summary judgment (“Motion”) (ECF Nos. 16, 24.) Plaintiff filed a response (ECF No. 28) and a cross-motion for summary judgment regarding the Eighth Amendment deliberate indifference claim (“Cross-Motion”) (ECF No. 29). Defendants filed a reply in support of their motion (ECF No. 30), as well as a response to Plaintiff's cross-motion for summary judgment (ECF No. 30). Plaintiff filed an Objection to the R&R (ECF No. 34) and Defendants filed a response to Plaintiff's Objection (ECF No. 35).

         After careful review and for the reasons discussed below, the Court adopts the R&R in full.

         II. BACKGROUND

         Plaintiff, an inmate proceeding pro se, brought two claims pursuant to 42 U.S.C. § 1983 arising out of incidents that occurred while he was placed at Northern Nevada Correctional Center (“NNCC”).[1] (ECF No. 36 at 1.) In the Amended Screening Order, the Court permitted Plaintiff to proceed with two claims arising from the Nevada Department of Corrections' (“NDOC”) failure to provide corrective surgery for Plaintiff's umbilical hernia: (1) an Eighth Amendment deliberate indifference to serious medical needs claim; and (2) an Americans with Disabilities Act/Rehabilitation Act (“ADA/RA”) claim. (ECF No. 5 at 1-8.) The relevant background, which the Court adopts, is set out in the R&R. (See ECF No. 32 at 1-3.)

         III. LEGAL STANDARD

         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 the 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.” Id. In light of Plaintiff's objections, the Court has engaged in a de novo review to determine whether to adopt Magistrate Judge Cobb's recommendations. 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).

         IV. DISCUSSION

         A. Deliberate Indifference Claim

         Plaintiff's Objection (ECF No. 34) is two pages in length and contains seven pages of exhibits. Plaintiff makes no new arguments but reiterates that a failure to receive corrective surgery for his hernia is exposing him to future harm because of the possibility that the hernia could become incarcerated or strangulated. (ECF No. 34 at 1.)

         To satisfy a deliberate indifference claim, the plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances and that the defendants chose this course in conscious disregard of an excessive risk to the plaintiff's health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (internal quotations omitted). Moreover, a delay in receiving medical treatment, as alleged by Plaintiff, is actionable only where the plaintiff demonstrates that the delay led to further injury. McGuckin v. Smith, 974 F.3d at 1050, 1060 (9th Cir. 1992). Yet, Plaintiff fails to demonstrate that his hernia has gotten any worse such that corrective surgery is required.

         As the Magistrate Judge noted, Dr. Mar admits that Plaintiff's hernia qualifies as a sufficiently serious medical condition (see ECF Nos. 32 at 15 and 30 at 6) but the Ninth Circuit has held that “[a] difference of opinion between a physician and the prisoner - or between medical professionals - concerning what medical care is appropriate does not amount to deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir 2016). The Court finds that the evidence presented in the record and as summarized in the R&R (see ECF No. 32 at 9-15) fails to demonstrate that corrective surgery was the only appropriate solution to treat Plaintiff's hernia during the relevant time period.

         Plaintiff also states that during visits with Dr. Mar after his transfer from NNCC to WSCC, he informed Dr. Mar that the abdominal belt that the doctor had prescribed was causing Plaintiff pain. (ECF No. 34 at 2.) Yet, the exhibits that Plaintiff attaches to his Objection do not indicate that he has filed any subsequent grievances regarding this claim and none of the grievances or medical kites in the record allege that Dr. Mar ignored Plaintiff's alleged complaint that the abdominal belt was causing him pain. (See id. at 6-9.) Therefore, the Court finds that Dr. Mar's recommendations that Plaintiff lose weight, use the ...


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