Deverna v. State of Nevada et al

Filing 36

ORDER - The Report and Recommendation (ECF No. 32 ) is accepted and adopted in full : Defendants' motion for summary judgment (ECF No. 16 ) is granted as specified herein. Defendants' preemption motion to dismiss (ECFNo. 16 ) is deni ed as moot. Plaintiff's cross-motion for summary judgment (ECF No. 29 ) is denied. Clerk shall enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 2/21/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES WAYNE DEVERNA, JR.,
Plaintiff,

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v.
STATE OF NEVADA, et. al.,

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Case No. 3:15-cv-00384-MMD-WGC
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation (“R&R”) of United States

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Magistrate Judge William G. Cobb (ECF No. 32) relating to Defendant’s motion to

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dismiss or, alternatively, motion for summary judgment (“Motion”) (ECF Nos. 16, 24.)

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Plaintiff filed a response (ECF No. 28) and a cross-motion for summary judgment

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regarding the Eighth Amendment deliberate indifference claim (“Cross-Motion”) (ECF

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No. 29). Defendants filed a reply in support of their motion (ECF No. 30), as well as a

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response to Plaintiff’s cross-motion for summary judgment (ECF No. 30). Plaintiff filed an

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Objection to the R&R (ECF No. 34) and Defendants filed a response to Plaintiff’s

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Objection (ECF No. 35).
After careful review and for the reasons discussed below, the Court adopts the R&R

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in full.

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II.

BACKGROUND

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Plaintiff, an inmate proceeding pro se, brought two claims pursuant to 42 U.S.C. §

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1983 arising out of incidents that occurred while he was placed at Northern Nevada

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Correctional Center (“NNCC”).1 (ECF No. 36 at 1.) In the Amended Screening Order, the

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Court permitted Plaintiff to proceed with two claims arising from the Nevada Department

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of Corrections’ (“NDOC”) failure to provide corrective surgery for Plaintiff’s umbilical

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hernia: (1) an Eighth Amendment deliberate indifference to serious medical needs claim;

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and (2) an Americans with Disabilities Act/Rehabilitation Act (“ADA/RA”) claim. (ECF No.

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5 at 1-8.) The relevant background, which the Court adopts, is set out in the R&R. (See

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ECF No. 32 at 1-3.)

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to the magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. In light of Plaintiff’s objections, the

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Court has engaged in a de novo review to determine whether to adopt Magistrate Judge

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Cobb’s recommendations. Where a party fails to object, however, the court is not

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required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has

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recognized that a district court is not required to review a magistrate judge’s report and

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recommendation where no objections have been filed. See United States v. Reyna-

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Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by

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the district court when reviewing a report and recommendation to which no objections

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were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

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(reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district

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courts are not required to review any issue that is not the subject of an objection). Thus,

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if there is no objection to a magistrate judge’s recommendation, then the court may

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accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at

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1Plaintiff

is currently placed at Warm Springs Correctional Center (“WSCC”). (ECF

No. 32 at 14.)
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1226 (accepting, without review, a magistrate judge’s recommendation to which no

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objection was filed).

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IV.

DISCUSSION

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A.

Deliberate Indifference Claim

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Plaintiff’s Objection (ECF No. 34) is two pages in length and contains seven

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pages of exhibits. Plaintiff makes no new arguments but reiterates that a failure to

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receive corrective surgery for his hernia is exposing him to future harm because of the

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possibility that the hernia could become incarcerated or strangulated. (ECF No. 34 at 1.)

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To satisfy a deliberate indifference claim, the plaintiff “must show that the course

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of treatment the doctors chose was medically unacceptable under the circumstances

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and that the defendants chose this course in conscious disregard of an excessive risk to

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the plaintiff’s health.” Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012) (internal

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quotations omitted). Moreover, a delay in receiving medical treatment, as alleged by

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Plaintiff, is actionable only where the plaintiff demonstrates that the delay led to further

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injury. McGuckin v. Smith, 974 F.3d at 1050, 1060 (9th Cir. 1992). Yet, Plaintiff fails to

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demonstrate that his hernia has gotten any worse such that corrective surgery is

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required.

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As the Magistrate Judge noted, Dr. Mar admits that Plaintiff’s hernia qualifies as a

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sufficiently serious medical condition (see ECF Nos. 32 at 15 and 30 at 6) but the Ninth

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Circuit has held that “[a] difference of opinion between a physician and the prisoner — or

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between medical professionals — concerning what medical care is appropriate does not

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amount to deliberate indifference.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir

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2016). The Court finds that the evidence presented in the record and as summarized in

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the R&R (see ECF No. 32 at 9-15) fails to demonstrate that corrective surgery was the

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only appropriate solution to treat Plaintiff’s hernia during the relevant time period.

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Plaintiff also states that during visits with Dr. Mar after his transfer from NNCC to

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WSCC, he informed Dr. Mar that the abdominal belt that the doctor had prescribed was

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causing Plaintiff pain. (ECF No. 34 at 2.) Yet, the exhibits that Plaintiff attaches to his
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Objection do not indicate that he has filed any subsequent grievances regarding this

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claim and none of the grievances or medical kites in the record allege that Dr. Mar

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ignored Plaintiff’s alleged complaint that the abdominal belt was causing him pain. (See

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id. at 6-9.) Therefore, the Court finds that Dr. Mar’s recommendations that Plaintiff lose

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weight, use the abdominal belt to hold in the hernia, and physically reduce the hernia, do

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not demonstrate a lack of deliberate indifference to Plaintiff’s serious medical needs. 2

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B.

ADA/RA Claim

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Plaintiff does not address the failure to exhaust administrative remedies with

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regards to his ADA/RA claim. Because Plaintiff does not contest the Magistrate Judge’s

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reasoning or recommendation, the Court accepts and adopts the Magistrate Judge’s

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recommendation to dismiss this claim without prejudice. See Thomas, 474 U.S. at 149.

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Having reviewed the R&R, the briefs relating to Defendants’ Motion, Plaintiff’s

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Cross-Motion, and Plaintiff’s Objection, the Court agrees with the Magistrate Judge’s

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well-reasoned analysis and recommendations. The Court will therefore adopt the R&R.

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V.

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CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 32) is accepted and

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adopted in full.

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It is ordered that Defendants’ motion for summary judgment (ECF No. 16) is

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granted with respect to the Eighth Amendment deliberate indifference claim. Defendants’

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motion for summary judgment is also granted with respect to Plaintiff’s ADA/RA claim,

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but dismissal of the ADA/RA claim is without prejudice based on Plaintiff’s failure to

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exhaust his administrative remedies. Defendants’ preemption motion to dismiss (ECF

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No. 16) is denied as moot.

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It is further ordered that Plaintiff’s cross-motion for summary judgment (ECF No.
29) is denied.
2Plaintiff

also states that after the issuance of the R&R, he has been approved for
surgery to repair his hernia. (ECF No. 34 at 2.)
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The Clerk is directed to enter judgment in accordance with this Order and close
this case.
DATED THIS 21th day of February 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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