United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
Ronald Collins, an incarcerated person, brought this case
under 42 U.S.C. § 1983 against multiple defendants. (ECF
No. 15 (Second Amended Complaint).) Before the Court is the
Report and Recommendation of United States Magistrate Judge
William G. Cobb concerning Plaintiff's motion for
preliminary mandatory injunction (“Motion”) (ECF
No. 23). (ECF No. 72.) In the R&R, Judge Cobb recommends
that this Court grants the Motion. Id. Defendants
have filed an objection (“Objection”) (ECF No.
75) and Plaintiff has responded (ECF No. 89). For the reasons
below, the Court will accept and adopt the R&R in its
entirety and overrule Defendants' Objection.
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. Johnstone,
263 F.Supp. at 1226 (accepting, without review, a magistrate
judge's recommendation to which no objection was filed).
light of Defendants' Objection, this Court now engages in
a de novo review to determine whether to adopt
Magistrate Judge Cobb's R&R. Judge Cobb recommends that
Plaintiff's Motion be granted chiefly because Defendants
failed to address the particular claims underlying
Plaintiff's request for preliminary injunction or provide
material evidence to undermine Plaintiff's relevant claim
of deliberate indifference. (See ECF No. 72.) In
sum, considering the pertinent factors and law Judge Cobb
concluded that Plaintiff demonstrated he was entitled to
emergency relief (id.). See, e.g.,
Alliance for the Wild Rockies v. Cottress, 632 F.3d
1127, 1132 (9th Cir. 2011) (providing factors); 18 U.S.C.
§ 3626(a)(2) (requiring narrowly tailored relief under
Prison Litigation Reform Act); Gilmore v. People of the
State of California, 220 F.3d 987, 998 (9th Cir. 2000)
(explaining that § 3626(a)(2) limits the courts'
power to grant preliminary injunctive relief to inmates).
Motion focused on his claim that Defendants were deliberately
indifferent to his serious medical need-his left arm and a
bone sticking out of his chest-because they refused to refer
him to a specialist, Dr. Kam, as recommended by Dr. Wolff
concerning his left arm/shoulder and possible
sternoclavicular joint reconstruction and for sternal lipoma
evaluation. (See ECF No. 23 at 32, 34-35
(Wolff's referral).) Plaintiff asks the Court to order
that Defendants have him evaluated by Dr. Kam.
object to the R&R, appearing to challenge Judge
Cobb's conclusion that Plaintiff is likely to succeed on
his deliberate indifference claim and arguing that Plaintiff
cannot demonstrate irreparable harm because Plaintiff has
already received an MRI and tests purportedly show Plaintiff
is not at risk for further harm. (ECF No. 75.) To support
their irreparable harm contention, Defendants proffer
evidence not previously submitted to Judge Cobb, contending
Plaintiff's need for emergency relief is essentially moot
at this point by the provision of other medical treatment.
(Compare ECF Nos. 26, 26-1 with ECF No. 75
at 3, 6-7.) First, Defendants provide that a doctor-Dr.
Lagios- performed a neurologic examination on Plaintiff on
February 21, 2019 and a EMG (electromyography and nerve
conduction study) on April 22, 2019. (ECF No. 75 at 6; ECF
Nos. 77-3, 77-4.) Next, Defendants note that Plaintiff
received an MRI of his neck and left arm on May 20, 2019.
(ECF No. 75 at 6-7; ECF Nos. 77-6, 77-6.) Defendants'
position amounts to a contention that Plaintiff cannot
establish that they are deliberately indifferent because
Plaintiff continues to receive some medical treatment.
(See generally ECF No. 75.)
Court will overrule Defendants' Objection because the
Court finds the Objection suffers from the same material
deficiencies noted in the R&R. Chiefly, Defendants do not
discuss Dr. Wolff's referral to Dr. Kam, which Dr. Wolff
made even “after he had reviewed the very CT results
that the Utilization Review Committee relied on in deferring
[Wolff's initial] referral.” (ECF No. 72 at 16.) To
be clear, Dr. Wolff referred Plaintiff to Dr. Kam on April 11
and June 6, 2018. (ECF No. 23 at 32, 34-35.) Additionally, it
is undisputed that Plaintiff continued to kite for months
complaining that he was in pain and the alternative diagnosis
and treatment Defendants' have provided Plaintiff has
failed to discern and/or alleviate pain related to
Plaintiff's left arm/shoulder and sternoclavicular
lipoma. See, e.g., Wilhelm v. Rotman, 680
F.3d 1113, 1123 n.8 (9th Cir. 2012) (citation omitted)
(“[U]nnecessary delay in administration of prescribed
treatment can amount to deliberate indifference”);
see also Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006) (concluding that a trier of fact could find
awareness of plaintiff's need for treatment and that the
doctor's “failure to see [the plaintiff] to ensure
[administration of the prescribed treatment] was deliberate
indifference to a serious medical condition”);
McGuckin v. Smith, 974 F.2d 1050, 1062 (9th
Cir.1992), overruled on other grounds by WMX Techs., Inc.
v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997)
(observing that a delay in treating the plaintiff's
condition forced him “to endure over seven months of
unnecessary pain” and no explanation was available for
a failure to provide the plaintiff with a “CT scan and
surgery . . . promptly after his need for those services was
unambiguously diagnosed”). Therefore, Defendants do not
undermine Judge Cobb's conclusion that Plaintiff is
likely to succeed on the merits of his narrow deliberate
the Court finds that the newly provided evidence Defendants
rely on- to support a lack of irreparable harm-does not
clearly foreclose the issue. For example, ECF No. 77-5
documents an exam of the “[c]ervical spine.” (ECF
No. 77-5 at 1.) This evidence does not clearly bear on the
issues relating to Plaintiff's left arm/shoulder and any
sternoclavicular lipoma. Defendants' reference to ECF No.
77-3 is also not adequately representative of Dr. Lagios'
findings. (Compare ECF No. 75 at 6 with ECF
No. 77-3.) As Defendants' note, Dr. Lagios provides
“it is difficult to ascertain what the actual
neurologic abnormalities were that were present in
[Plaintiff's] presentation . . . he has no symptoms
consistent with radicular neuropathy.” (ECF No. 77-3 at
2.) But, Dr. Lagios also couched this statement based on the
fact that he was conducting a “clinical bedside
examination” and suggested that an MRI and the opinion
of an orthopedist was needed. (Id.)
Plaintiff has submitted a response to the Objection, which in
part challenges Dr. Lagios' finding that there is no
support for brachial plexopathy-which Defendants rely on (ECF
No. 75 at 6; ECF No. 77-3 at 2; ECF No. 77-4 at 3). (ECF No.
89 at 3, 24.) In his response, Plaintiff provides that he was
“finally seen” by Dr. Long-an orthopedist-on June
19, 2019. (Id.) Notably, this is subsequent to the
February, April, and May 2019 medical diagnoses that
Defendants' rely on. Plaintiff contends that Dr.
Long's findings support Dr. Wolff's findings which
led to the latter's recommendation that Plaintiff be
examined by Dr. Kam. (Id. at 3, 6.) Plaintiff
suggests that Dr. Long disagrees with Dr. Lagios'
conclusion that Plaintiffs condition does not support a
brachial plexopathy. (Id. at 6.)
provides a copy of the prison's daily call medical list
to show he met with Dr. Long on June 19, 2019 (id.
at 24). Plaintiff additionally notes that Defendants continue
to deny him access to his medical records so he his unable to
provide the Court with Dr. Long's report (id. at
7). Defendants' failure to provide Plaintiff with his
medical reports/files is incompliant with an order the Court
issued on July 3, 2019. (ECF No. 85.) That order directed
that Defendants must provide Plaintiff “access to his
medical reports/files in a manner that is compliant with
pertinent administrative regulations.” (Id.)
The purpose of providing the medical records was to provide
Plaintiff with medical information Plaintiff alleged he
needed to properly respond to Defendants' Objection.
Defendants' failure to provide Plaintiff timely access to
his medical records is unacceptable.
event and for the reasons stated above, the Court accepts the
R&R and overrules Defendants' Objection.
therefore ordered, adjudged and decreed that the Report and
Recommendation of Magistrate Judge William G. Cobb (ECF No.
72) is accepted and adopted in its entirety.
further ordered that Plaintiff's motion for preliminary
injunction (ECF No. 23) is therefore granted. Defendants must
have Plaintiff evaluated by Dr. Kam regarding the left
arm/shoulder and sternoclavicular lipoma, consistent with Dr.
Wolff's recommendations in April and June 2018.
Defendants are required to do so ...