Lonn v. Corizon Health et al

Filing 74

ORDER ADOPTING REPORT AND RECOMMENDATIONS. NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on May 24, 2016 (Dkt. 72 ) is ADOPTED IN ITS ENTIRETY. Defendants Motion for Summary Judgment (Dkt. 55 ) is GRANTED and Plaintiffs claims against Dr. Dawson and Dr. Stander are DISMISSED. 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 (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DAVID KARL LONN,
Case No. 1:14-CV-00031-EJL
Plaintiff,
ORDER ON REPORT AND
RECOMMENDATION

v.
CORIZON HEALTH, DR. APRIL
DAWSON, DR. DAVID AGLER, and
DR. KLINT STANDER,
Defendants.

INTRODUCTION
On May 24, 2016, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”) recommending that Defendants Dr. Klint
Stander and Dr. April Dawson’s Motion for Summary Judgment be granted. (Dkt.
72.) 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 judge. Id.; see also Fed. R.
Civ. P. 72(b). No written objections have been filed and the time for doing so has
passed. 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) . . . .
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.
DISCUSSION
The complete procedural background and facts of this case are well
articulated in the Report and the Court incorporates the same in this Order. (Dkt.
72.) Plaintiff David Lonn (“Plaintiff”) initiated this action on February 3, 20141 by
filing his Complaint against Corizon Health, Dr. April Dawson, Dr. David Agler,

1

As the Report notes, the docket in this case indicates Plaintiff’s complaint was
filed on February 6, 2014. However, this Court adopted a later report and
recommendation, which applied the mailbox rule and deemed the Complaint filed
on February 3, 2014. (Dkt. 44, p. 6.)

and Dr. Klint Stander. Plaintiff alleges state law claims of negligence against the
Defendants, as well as violations of the Eighth Amendment to the United States
Constitution based upon deliberate indifference to his serious medical needs. (Dkt.
3.) The claims relate to Plaintiff’s allegations that Defendants’ conservative
treatment plans caused him to suffer from prolonged pain in his right hip. Id.
Plaintiff supports his claim by asserting that a prior hip replacement alleviated pain
in his other hip. (Dkt. 66, p. 4.) The subject of the Report is the Motion for
Summary Judgment that Defendants Stander and Dawson filed on December 17,
2015. (Dkt. 55.)
The Report recommends granting the Motion for Summary Judgment,
effectively dismissing Plaintiff’s claims against Dr. Stander and Dr. Dawson.
Significantly, this Court adopted a previous report and recommendation noting that
all conduct complained of against Dr. Stander and Dr. Dawson occurring prior to
February 3, 2012, would be barred by the statute of limitations. (Dkt. 44.) The
Court subsequently permitted Plaintiff to amend his pleadings to show equitable
tolling or equitable estoppel should be applied to render his complaints timely.
(Dkt. 49, p. 3.) Plaintiff has made no such showing. The only exception is
Plaintiff’s mention of his visit with Dr. Dawson in May of 2012. The Report notes
this visit, but correctly concludes that Plaintiff has not produced evidence to show

Dr. Dawson was deliberately indifferent to a serious medical need of Plaintiff at
that time. (Dkt. 72, p. 19.)
This Court has reviewed the original briefing of the parties, the Report, and
the entire record herein. In doing so, the Court is mindful 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)).
Applying these principles here, this Court is in agreement with the reasoning
and conclusion of the Report that Defendants’ Motion for Summary Judgment
should be granted. (Dkt. 72.) Moreover, the Court is in agreement with the
Report’s recitation of the facts, discussion of the applicable law, and analysis. For
these reasons and those stated in the Report, the Court will adopt the Report and
grant the Defendants’ Motion.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on May 24, 2016 (Dkt. 72) is ADOPTED IN ITS
ENTIRETY as follows:
1) Defendants’ Motion for Summary Judgment (Dkt. 55) is GRANTED and
Plaintiff’s claims against Dr. Dawson and Dr. Stander are DISMISSED.

DATED: July 14, 2016

_________________________
Edward J. Lodge
United States District Judge