Lopez v. Corizon Inc. et al

Filing 34

ORDER ON REPORT AND RECOMMENDATION - NOW THEREFORE IT IS HEREBY ORDERED that the Report and Recommendation entered on 5/24/2016 (Dkt. 31 ) is ADOPTED IN ITS ENTIRETY as follows: 1) The Defendants Motion for Summary Judgment (Dkt. 20 ) is GRANTED and Plaintiffs claims against Defendants 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 (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DANNY M. LOPEZ,

Case No. 1:15-CV-00123-EJL

Plaintiff,

ORDER ON REPORT AND
RECOMMENDATION

v.
CORIZON, INC.; DR. ELIASON; and
MS. SEYS,
Defendants.

INTRODUCTION
On May 24, 2016, United States Magistrate Judge Candy W. Dale issued a
Report and Recommendation (“Report”) recommending that Defendants’ Motion
for Summary Judgment be granted. (Dkt. 31.) 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

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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). Plaintiff filed written objections and Defendants have responded. 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
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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 unobjected to portions of the Report as well as
the record in this matter for clear error and none has been found. The Court has
also conducted a de novo review of those portions of the Report to which the
Plaintiffs have objected and finds as follows.
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.
31.) Plaintiff Damon M. Lopez (“Plaintiff”) initiated this action on April 10, 2015
by filing his Complaint against Corizon, Inc. (“Corizon”), Dr. Scott Eliason, and

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Jane Seys.1 (Dkt. 3.) Plaintiff is a prisoner in the custody of the Idaho Department
of Correction (“IDOC”) who claims Defendants violated provisions of state or
federal law requiring that inmates be provided adequate medical care. (Dkt. 3.)
Plaintiff’s claims generally allege that Defendants removed him from Wellbutrin,
an antidepressant that worked well for him, and proceeded to try a host of other
medications that either did not work for him or caused him to suffer very bad side
effects. (Id. at p. 2.) Plaintiff alleges the Defendants’ failure to prescribe
Wellbutrin amounts to deliberate indifference to his mental health care in violation
of the Eighth Amendment to the United States Constitution. Id.
The subject of the Report is the Motion for Summary Judgment that
Defendants filed on February 3, 2016. (Dkt. 20.) The Report recommends that the
district court grant the Motion and dismiss Plaintiff’s claims against Defendants.
(Dkt. 31.) First, the Report recommends the district court dismiss Plaintiff’s
claims against Defendant Corizon because Plaintiff failed to produce sufficient
evidence to support a finding that Corizon had a custom or policy causing the
injury to Plaintiff. Second, the Report recommends the district court dismiss
Plaintiff’s claims against Defendants Dr. Eliason and Seys because Plaintiff failed
to establish a genuine issue of material fact that Defendants’ treatment plan for

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Jane Seys is a Psychiatric Nurse Practitioner employed by Corizon who is able to
write prescriptions and provided continuing care to Plaintiff.
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Plaintiff was “medically unacceptable” or chosen in conscious disregard of an
excessive risk to Plaintiff’s mental health. (Dkt. 31, p. 24.)
Plaintiff objects to the Report’s recommendations with a myriad of
arguments, some of which were raised in his response to the Motion for Summary
Judgment. (Dkt. 27.) The Court has reviewed the Plaintiffs’ objections de novo
and concludes the Report has properly addressed the arguments in this case.
Furthermore, this Court’s own view of the record, briefing, and applicable law is
consistent with the reasoning and analysis as articulated in the Report.
The Report notes that Corizon, as a corporation, may only be held liable for
a 42 U.S.C. § 1983 violation if it is found to have a policy or custom that causes
the deprivation of Plaintiff’s constitutional rights. See Monell v. Department of
Social Services of New York, 436 U.S. 658, 694 (1978). Plaintiff contends
Corizon’s policy is to decline prescribing effective drugs for an inmate’s serious
medical condition if the drug is not on the formulary. However, Plaintiff has not
come forward with evidence of any policy other than his opinion based upon his
requests for Wellbutrin, and the resulting denial of a prescription for Wellbutrin.
The undisputed facts in the record indicate Corizon maintained a formulary list of
approved medications and would prescribe a medication not on the formulary list if
the inmate’s medical condition warranted it and approval was given.

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The Report also notes that a disagreement between a patient and his or her
medical provider about a treatment plan is not actionable unless the Plaintiff can
show the treatment plan was “medically unacceptable under the circumstances” or
was “chosen in conscious disregard of an excessive risk” to Plaintiff’s mental
health. (Dkt. 31, p. 24.) (quoting Toguchiv. Chung, 391 F.3d 1051, 1058 (9th Cir.
2004)). Plaintiff argues Dr. Eliason and Seys were deliberately indifferent to his
serious medical needs because Seys prescribed numerous medications to treat his
depression that were not effective, and unjustifiably denied him a prescription for
Wellbutrin despite the fact that it had alleviated his depression symptoms in the
past. This Court agrees with the Report that Plaintiff has failed to meet his burden
to create a genuine issue of material fact that the treatment plan chosen by Seys
was “medically unacceptable” or “chosen in conscious disregard of an excessive
risk to Plaintiff’s mental health.”
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,

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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. 31.) 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. 31) is ADOPTED IN ITS
ENTIRETY as follows:
1) The Defendants’ Motion for Summary Judgment (Dkt. 20) is
GRANTED and Plaintiff’s claims against Defendants are DISMISSED.

July 28, 2016

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