United States District Court, D. Nevada
ASHTON E. CACHO, Plaintiff,
DR. JOHNS, et. al., Defendants.
ORDER REGARDING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE VALERIE P. COOKE
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Valerie P. Cooke (ECF No. 29)
(“R&R” or “Recommendation”)
relating to Defendants' Motion for Summary Judgment
(“Defendants' Motion”) (ECF Nos. 20, 21
(sealed)). Plaintiff filed his objection to the R&R on
August 28, 2017 (ECF No. 32), and Defendants filed their
response thereto on September 11, 2017 (ECF No. 33).
screening pursuant to 28 U.S.C. § 1915, the Court
permitted Plaintiff to proceed on a single claim for Eighth
Amendment deliberate indifference to serious medical needs.
(ECF No. 3 at 5.) The facts giving rise to Plaintiff's
claim is explained in details in the R&R (ECF No. 29 at
1-2), which this Court adopts.
Review of the Magistrate Judge's Recommendations
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).
Summary Judgment Standard
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
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (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. See 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 v. Cities Service 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).
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). 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.
Magistrate Judge found that Plaintiff properly exhausted his
administrative remedies and recommends denying
Defendants' Motion based on the affirmative defense of
failure to exhaust. (ECF No. 29 at 7.) Defendants do not
object to this finding. Accordingly, the Court adopts the
Magistrate Judge's recommendation and denies
Defendants' Motion based on Defendants' exhaustion
argument. As to the merits, the Magistrate Judge recommends
granting summary judgment based on the undisputed evidence
and based on Plaintiff's failure to meet his burden of
demonstrating harm by any alleged delay in the scheduling of
an MRI. (Id. at 9-10.) In particular, the Magistrate
Judge found that the undisputed medical records do not
support Plaintiffs assertions that Defendants have denied
treatment for Plaintiff's shoulder injury, and have
delayed scheduling an MRI and Plaintiff offered no evidence
that he suffered harm as a result of any such delay. In light
of Plaintiff's objection, the Court has engaged in a de
novo review of the Magistrate Judge's recommendations and
agrees with the recommendations.
terms of Plaintiff's allegations that he had not received
any treatment or had an MRI done at the time he filed the
Complaint, the Magistrate Judge correctly found that the
records do not support these allegations. (Id. at
9.) Plaintiff had an MRI on March 3, 2016 (ECF No. 21-1 at
3), which was about a month before he filed the Complaint.
The undisputed medical records also reveal that Plaintiff
received several medical exams, X-rays and medications for
his shoulder injury (ECF Nos. 21-1, 21-2.) As the Magistrate
Judge correctly found, delay in treatment is not actionable,
unless the delay led to further ...