Hogan v. Correctional Medical Services et al

Filing 48

ORDER ON REPORT AND RECOMMENDATIONS the Report and Recommendation entered on 2/24/15 (Dkt. 42 ) is ADOPTED and, for the reasons stated therein, Defendants Dr. Garrett, Lorna Huffman, Jan Epp, and John Doe #1 are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the Motion to Lift the Stay (Dkt. 45 ) is MOOT and shall be CLOSED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TODD AUSTIN HOGAN,
Case No. 1:12-CV-00295-EJL-CWD
Plaintiff,
ORDER ON REPORT AND
RECOMMENDATION

v.
CORRECTIONAL MEDICAL
SERVICES (CMS), DR. ALICE
DAWSON, DR. GARRETT, LORNA
HUFFMAN, KATHLEEN NIEKO, R.N.,
JAN EFF, JOHN DOE #1,
Defendants.

INTRODUCTION
On February 24, 2015, Chief United States Magistrate Judge Candy W. Dale issued
a Report and Recommendation (“Report”), recommending that this Court enter an order of
dismissal without prejudice as to Defendants Dr. Garrett, Lorna Huffman, Jan Epp, and John
Doe #1. (Dkt. 42.) Any party may challenge a magistrate judge’s proposed recommendation
by filing written objections to the Report within fourteen days after being served with a copy
of the same. See 28 U.S.C. § 636(b)(1); Local Civil Rule 72.1(b). The district court must then
“make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id. The district court may accept, reject,
or modify in whole or in part, the findings and recommendations made by the magistrate
ORDER ON REPORT AND RECOMMENDATION- 1

judge. Id.; see also Fed. R. Civ. P. 72(b). Plaintiff has filed objections to the Report. (Dkt.
44.) The matter is now ripe for the Court’s consideration. See Local Civil Rule 72.1(b)(2);
28 U.S.C. § 636(b)(1)(B).
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report which objection is made.” Id. Where, however,
no objections are filed the district court need not conduct a de novo review. In United States
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements
of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, “to the
extent de novo review is required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.” Peretz, 501 U.S. at 939 (internal
citation omitted). Neither the Constitution nor the statute requires a district
judge to review, de novo, findings and recommendations that the parties
themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (“Absent an
objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.”); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for
Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days

ORDER ON REPORT AND RECOMMENDATION- 2

of service of the Report and Recommendation). “When no timely objection is filed, the Court
need only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v.
United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
The Court has reviewed the entire Report as well as the record in this matter for clear
error on the face of the record and none has been found. The Court has also conducted a de
novo review of those portions of the Report to which the Plaintiff has objected and finds as
follows.
DISCUSSION
The Plaintiff has been previously provided instructions and directed to serve all unserved Defendants. Despite an extension and additional instruction, the Plaintiff has failed
to complete service of these Defendants. As such, the Report recommends that the un-served
Defendants be dismissed without prejudice. Plaintiff has filed an objection to the Report
asking that this Court grant him leniency as a pro se prisoner litigant and allow him leave to
withdraw his motions to compel and instead file a motion for in camera review so that he
may discover the identity of John Doe #1 and the last known addresses for the un-served
Defendants. (Dkt. 44.) Upon reviewing the record, the Court finds that the Plaintiff has been
afforded a great deal of latitude and instruction in regards to effectuating service upon all
Defendants in this case and has failed to satisfy this requirement. (Dkt. 24, 34.) Thus, while
the Court is aware of the Plaintiff’s status as a pro se prisoner litigant, the fact remains that
pro se litigants are held to same procedural rules as counseled litigants. King v. Atiyeh, 814
ORDER ON REPORT AND RECOMMENDATION- 3

F.2d 565, 567 (9th Cir. 1987). Here, Plaintiff has failed to properly serve Defendants Garrett,
Huffman, Epp, and John Doe #1. As such, the Court agrees that these Defendants should be
dismissed without prejudice.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on February 24, 2015 (Dkt. 42) is ADOPTED and, for the reasons
stated therein, Defendants Dr. Garrett, Lorna Huffman, Jan Epp, and John Doe #1 are
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Motion to Lift the Stay (Dkt. 45) is MOOT and
shall be CLOSED.
DATED: April 16, 2015

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION- 4