Warren v. Corizon Health et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS the Report and Recommendation entered on 12/8/15 (Dkt. 46 ) is ADOPTED IN ITS ENTIRETY as follows: 1) The Defendant's Motion for Summary Judgment (Dkt. 40) is GRANTED. 2) The claims against the Defendan ts Michael Takagi, PAC, Steven Stedtfeld, PA-C, and David Foss, NP, are dismissed without prejudice. 3) Judgment shall be entered in favor of Defendants April Dawson, M.D., and Diana Dice, PA-C. 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

JOHN F. WARREN,
Case No. 1:14-CV-00011-EJL-CWD
Plaintiff,
ORDER ON REPORT AND
RECOMMENDATION

v.
CORIZON HEALTH; DR. APRIL
DAWSON, M.D.; MICHAEL TAKAGI,
PA-C; DIANE DICE, PA-C; STEVEN
STEDTFELD, PA-C; DAVID FOSS, NP
RYAN VALLEY, HASA; BRISTY
DELAOE; JOHN DOE PROVIDER;
JANE DOE PROVIDER; STEVEN
LITTLE, WARDEN; BRENT REINKE,
DIRECTOR OF IDAHO DEPT. OF
CORRECTIONS;
Defendants.

INTRODUCTION
On December 8, 2015, United States Magistrate Judge Candy W. Dale issued a Report
and Recommendation (“Report”), recommending that the Motion for Summary Judgment as
to Defendants Dawson and Dice be granted and that the claims against the remaining
Defendants be dismissed without prejudice. (Dkt. 46.) 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

ORDER ON REPORT AND RECOMMENDATION- 1

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 judge. Id.; see also Fed. R. Civ. P. 72(b). The
Plaintiff filed written objections. (Dkt. 47.) The matter is 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) . . . .

ORDER ON REPORT AND RECOMMENDATION- 2

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
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 full 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 procedural background and facts of this case are more fully contained in the
Report and the Court incorporates the same in this Order. (Dkt. 46.) Plaintiff, a prisoner in
the custody of the Idaho Department of Corrections, initiated this action by filing his pro se
Complaint against the Defendants raising claims under 42 U.S.C. § 1983 alleging violations
of his Eighth Amendment right. (Dkt. 3.) On December 4, 2014, this Court entered an Order
granting in part and denying in part the Defendants’ Motion to Dismiss/Motion for Summary
Judgment which dismissed certain of Plaintiff’s claims but allowed the claims relating to the
over-prescribing of nonsteroidal anti-inflammatory drugs (NSAIDs) medications and

ORDER ON REPORT AND RECOMMENDATION- 3

intestinal bleeding to proceed. (Dkt. 25.)1 On the surviving claims, the Plaintiff generally
alleges the Defendants were deliberately indifferent in over-prescribing him NSAIDs without
providing precautionary information which caused him to suffer from colon ulcers, intestinal
bleeding, gastritis, inflammatory bowel disorder, and other injuries known to be linked to the
use of NSAIDs. (Dkt. 3.) Defendants April Dawson, M.D., and Diana Dice, PA-C, filed the
Motion for Summary Judgment which is the subject of the Report and this Order. (Dkt. 40.)2
This Court has reviewed the original briefing of the parties, the Report, Plaintiff’s
objections, and the entire record herein. In doing so, the Court recognizes that the Plaintiff
is a pro se litigant and, as such, the filings and motions are construed liberally. See Thomas
v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). That being said, while pro se litigants are
held to less stringent standards, a litigant's pro se status does not excuse him or her from
complying with the procedural or substantive rules of the court. Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Jackson v. Carey, 353 F.3d 750, 757 (9th Cir. 2003). As the
Ninth Circuit has held “an ordinary pro se litigant, like other litigants, must comply strictly
with the summary judgment rules.” Thomas, 611 F.3d at 1150 (citing Bias v. Moynihan, 508
F.3d 1212, 1219 (9th Cir. 2007)).
1

The Court also denied Plaintiff’s Motion to Amend. (Dkt. 34, 43.)

2

In the Court’s Initial Review Order, Plaintiff was advised that if he received notice
from Defendants indicating service would not be waived, he would have ninety days in
which to provide service to those non-waiving Defendants. (Dkt. 9.) Service was waived only
as to Defendants Dawson and Dice. Plaintiff has not provided service addresses for the
remaining Defendants. Therefore, as stated in the Report, Plaintiff’s claims against
Defendants Michael Takagi, Steven Stedtfeld, and David Foss are dismissed without
prejudice. (Dkt. 46.)
ORDER ON REPORT AND RECOMMENDATION- 4

Applying the above principles to this matter, this Court agrees with the reasoning and
conclusion of the Report finding the Plaintiff failed to raise a genuine issue of material fact
demonstrating that Dr. Dawson or P.A. Dice were deliberately indifferent in relation to the
over-prescription of NSAIDs claim. (Dkt. 46.) The Court finds the Report’s recitation of the
facts is accurate and complete and concurs with the Report’s discussion of the applicable law
and analysis. For these reasons, the Court will adopt the Report and grant the Motion for
Summary Judgment.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on December 8, 2015 (Dkt. 46) is ADOPTED IN ITS
ENTIRETY as follows:
1)

The Defendant’s Motion for Summary Judgment (Dkt. 40) is GRANTED.

2)

The claims against the Defendants Michael Takagi, PAC, Steven Stedtfeld,
PA-C, and David Foss, NP, are dismissed without prejudice.

3)

Judgment shall be entered in favor of Defendants April Dawson, M.D., and
Diana Dice, PA-C.
DATED: February 18, 2016

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION- 5