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Reberger v. Westfay

United States District Court, D. Nevada

December 20, 2019

LANCE REBERGER, Plaintiff,
v.
WESTFAY, et al., Defendants.

          WILLIAM G. COBB, MAGISTRATE JUDGE.

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Pro se Plaintiff Lance Reberger, an incarcerated person, brought this action pursuant to 42 U.S.C. § 1983. Before the Court is a Report and Recommendation of United States Magistrate Judge William G. Cobb (“R&R”). (ECF No. 123.) In the R&R, Judge Cobb addresses Defendants Deborah Comparoni and Sommer Westbay's[1] motion for summary judgment (“Motion”) (ECF No. 102). Although the Court granted him multiple extensions to respond to the Motion (ECF Nos. 109, 114, 116), [2] Plaintiff failed to do so. Judge Cobb recommends granting summary judgment in favor of Defendants on Plaintiff's sole claim for violation of the Eighth Amendment. Plaintiff has objected to the R&R (“Objection”) (ECF No. 125) and Defendants Comparoni and Westbay responded (ECF No. 126). The Court will accept and adopt the R&R in its entirety.

         II. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 5.) This action concerns events that took place while Plaintiff was housed at Ely State Prison (“ESP”). (Id.)

         On screening, Plaintiff was allowed to proceed with a single Eighth Amendment conditions of confinement claim related to his allegations that he was served raw or undercooked food at ESP. (Id.; ECF No. 4 at 6.) Plaintiff alleged that the food made him sick and subjected him to a risk of infection because his immune system is compromised due to him being HIV positive. (ECF No. 5 at 3-5.)

         The Court previously dismissed Defendant Vern Harlow from this action for Plaintiff's failure to show proof of service upon Harlow on February 1, 2019. (ECF No. 89 at 5-6.) In the same order, the Court also granted summary judgment to Defendants William Shaw and Gary Gonzales on Plaintiff's claim. (Id. at 5.) Comparoni and Westbay filed a late motion to join Shaw and Gonzales' motion for summary judgment (ECF Nos. 17, 73), but the Court denied the request. (ECF No. 84.) Comparoni and Westbay filed a renewed motion for summary judgment on Plaintiff's claim in April 2019. (ECF No. 102.)

         Further background regarding this matter is included in the R&R (ECF No. 123), which the 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).

         In light of Plaintiff's Objection, the Court engages in de novo review to determine whether to accept the R&R. Upon reviewing the Objection, R&R, related brief (ECF No. 102), and accompanying exhibits (ECF Nos. 102-1 through 102-11), the Court finds the R&R should be accepted in full.

         B. Summary ...


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