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Reberger v. Koehn

United States District Court, D. Nevada

March 21, 2019

LANCE REBERGER, Plaintiff,
v.
MICHAEL KOEHN, et al., Defendants.

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CARLA B. CARRY

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge Carla B. Carry (“R&R”) relating to Plaintiff's second amended civil rights complaint (“SAC”) filed against Defendants[1] (ECF No. 8.) and Defendants' related motion for summary judgment (“Motion”) (ECF No. 189). (ECF No. 267.) In the R&R, Judge Carry recommended that this Court grant summary judgment for Defendants. (ECF No. 120 at I, 13.) Plaintiff was provided additional time and copy work to file an objection. (ECF Nos. 122, 124, 127.) To date, Plaintiff has not filed his objection. For the reasons stated below, the Court accepts and adopts the R&R in its entirety.[2]

         II. BACKGROUND

         Plaintiff who is an inmate in custody of the Nevada Department of Corrections (“NDOC”) brought this case under 42 U.S.C. § 1983. (ECF No. 8.) The events giving rise to this case occurred while Plaintiff was housed at Ely State Prison (“ESP”) in Ely, Nevada and at High Desert State Prison (“HDSP”) in Indian Springs, Nevada. (Id.). Following screening, Plaintiff was allowed to proceed with both claims he asserted in the SAC-for deliberate indifference to his serious medical needs under the Eighth Amendment (Count I) and retaliation under the First Amendment (Count II). (ECF Nos. 8, 9.) Both counts focus on Defendants' alleged refusal to permit Plaintiff to have his HIV medication “Keep on Person” (“KOP”) and are contextualized by Plaintiff's assertion that this medication is “required to be consumed with food every 12 hours-no exceptions.” (ECF No. 8 at 4-5) (emphasis added).

         Further background regarding Plaintiff's allegations and Defendants' responses are explained in detail in the R&R (ECF No. 267), which this Court adopts.

         III. LEGAL STANDARD

         A. Review of Magistrate Judge's Recommendation

         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).

         While Plaintiff has failed to file an objection, the Court nevertheless finds it appropriate to engage in a de novo review to determine whether to adopt Magistrate Judge Carry's R&R. Upon reviewing the R&R, the briefs and records in this case, this Court finds good cause to adopt the R&R in full.

         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 pleadings, the discovery and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (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 (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). 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., NT & SA, 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. Moreover, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         IV. ...


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