Lonn v. Corizon Health et al
ORDER ON REPORT AND RECOMMENDATIONS. IT IS HEREBY ORDERED as follows: The Report and Recommendation entered on May 19, 2017 (Dkt. 88 ) is ADOPTED IN ITS ENTIRETY. Defendant's Motion for Summary Judgment (Dkt. 78 ) is GRANTED and Plaintiff 039;s claims against Defendant Dr. Agler are DISMISED. The Claims against Corizon Health Services are DISMISSED. The Clerk of the Court is directed to CLOSE THE CASE as all claims against all Defendants have now been 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
ORDER ON REPORT AND
CORIZON HEALTH, DR. APRIL
DAWSON, DR. DAVID AGLER, and
DR. KLINT STANDER,
On May 19, 2017, United States Magistrate Judge Candy W. Dale issued a Report
and Recommendation (“Report”) recommending that Defendant Dr. David Agler’s Motion
for Summary Judgment be granted. (Dkt. 88.) 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.1 The
matter is ripe for the Court’s consideration. See Local Civil Rule 72.1(b)(2); 28 U.S.C.
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.
The Court granted Mr. Lonn’s request for an extension of time in which to file his objections until July 5, 2017.
(Dkt. 89-91.) No objections were filed within that time period.
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 complete procedural background and facts of this case are well articulated in
the Report and the Court incorporates the same in this Order. (Dkt. 88.) Plaintiff David
Lonn filed a Complaint against Corizon Health Services (“Corizon”), Dr. April Dawson,
Dr. David Agler, and Dr. Klint Stander alleging 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. 86.) The Court
previously entered an Order adopting Judge Dale’s May 24, 2016 Report recommending
that Defendants Dr. Stander and Dr. Dawson’s Motion for Summary Judgment be granted.
(Dkt. 72, 74.)2 The Court now takes up the May 19, 2017 Report recommending Dr. Agler’s
Motion for Summary Judgment be granted. (Dkt. 78, 88.)
The Report accurately summarizes Mr. Lonn’s arguments and claims against Dr.
Agler as well as the materials and records of the care Dr. Agler provided. (Dkt. 88.) Having
done so, the Report concludes that Mr. Lonn has failed to present evidence of a genuine
issue of material fact regarding his claims that Dr. Agler’s treatment constituted deliberate
indifference and recommends that summary judgment be granted. (Dkt. 88 at 12.) 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)).
The Court’s Initial Review Order dismissed the claims against Corizon but allowed Mr. Lonn to amend the Complaint
to provide further facts meeting the legal standard required for him to assert his claims against Corizon. (Dkt. 7 at 78.) Mr. Lonn filed an Amended Complaint which names Corizon and re-alleges that Corizon deprived him of adequate
medical care; created undue and unreasonable pain to him; was deliberately indifferent to his need for medical care in
violation of the Eight Amendment; and failed to reprimand, correct, and/or take steps to ensure its employees provided
the requisite care. (Dkt. 64 at 3-4.) This Court has reviewed the claim against Corizon in the Amended Complaint and
finds that it again fails on its merits for the same reasons stated in the Initial Review Order; i.e., there is no allegation
or facts plead that Corizon had a policy or custom of medical indifference separate and apart from the medical
decisions of the individual medical providers. (Dkt. 7 at 7.) The claims against Corizon are also dismissed for lack of
service because the Amended Complaint was never served upon Corizon. Fed. R. Civ. P. 4(m).
Applying these principles here, this Court is in agreement with the reasoning and
conclusion of the Report that Defendant’s Motion for Summary Judgment should be
granted. (Dkt. 78, 88.) 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 Defendant’s Motion.
NOW THEREFORE IT IS HEREBY ORDERED as follows:
The Report and Recommendation entered on May 19, 2017 (Dkt. 88) is
ADOPTED IN ITS ENTIRETY.
Defendant’s Motion for Summary Judgment (Dkt. 78) is GRANTED and
Plaintiff’s claims against Defendant Dr. Agler are DISMISSED.
The Claims against Corizon Health Services are DISMISSED.
The Clerk of the Court is directed to CLOSE THE CASE as all claims
against all Defendants have now been dismissed.
DATED: July 6, 2017
Edward J. Lodge
United States District Judge
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