Williams v. Marks et al

Filing 137

ORDERED that Plaintiff' s objection (ECF No. 135 ) to the Report and Recommendation of U.S. Magistrate Judge William G. Cobb is overruled. The Report and Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 132 ) is a ccepted and adopted in full. It is further ordered that Defendants' motion for summary judgment (ECF No. 120 ) is granted. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 2/24/2021. (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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MICHAEL LEON WILLIAMS,

Case No. 3:17-cv-00355-MMD-WGC
Plaintiff,

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ORDER

v.
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DR. MARKS, et al.,
Defendants.

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I.

SUMMARY

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Pro se Plaintiff Michael Leon Williams, who is incarcerated in the custody of the

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Nevada Department of Corrections at the Northern Nevada Correctional Center, brings

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this action under 42 U.S.C. § 1983. (ECF No. 4.) Before the Court is the Report and

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Recommendation (“R&R”) of United States Magistrate William G. Cobb (ECF No. 132),

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recommending the Court grant Defendants’ motion for summary judgment (ECF No. 120

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(“Motion”)) and direct entry of judgment in Defendants’ favor. Plaintiff filed an objection to

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the R&R. (ECF No. 135 (“Objection”).)1 Because the Court agrees with Judge Cobb’s

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analysis of the Motion, is not persuaded by the arguments Plaintiff raises in his Objection—

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and as further explained below—the Court will adopt the R&R in full and grant Defendants’

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Motion.

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II.

BACKGROUND

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The Court incorporates by reference Judge Cobb’s recitation of the background

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and undisputed facts of this case provided in the R&R, which the Court adopts. (ECF No.

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1The

Court granted (ECF No. 134) Plaintiff’s request for an extension of time (ECF
No. 133) to file his objection. In addition, Defendants filed a response to Plaintiff’s
Objection. (ECF No. 136.)

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132 at 1-4, 7-10, 12.) Judge Cobb recommends granting Defendants’ Motion as to

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Plaintiff’s Eighth Amendment claim for deliberate indifference to a serious medical need

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because the evidence Defendants proffered shows Plaintiff was seem numerous times for

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his complaints of chronic lumbar spine pain, and that he received multiple other pain

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medications beyond the Oxycodone he repeatedly requested. (Id. at 11.) Judge Cobb

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determined Plaintiff’s claim amounts, at most, to a difference of opinion with his medical

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providers, which does not amount to deliberate indifference under the circumstances

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present in this case. (Id.) Judge Cobb also recommends the Court grant Defendants’

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Motion as to Plaintiff’s First Amendment claim that Ward interfered with Plaintiff’s right to

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access the grievance process because Defendants presented evidence completely

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refuting Plaintiff’s claim. (Id. at 12.) As to both claims, Judge Cobb also noted that Plaintiff

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never filed an opposition to Defendants’ Motion, despite being given a several month

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extension to file one. (Id. at 3, 11, 12.)

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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 a 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. The Court’s review is thus de novo

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because Plaintiff filed his Objection. (ECF No. 135.)

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IV.

DISCUSSION

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Plaintiff’s primary argument in his Objection is more of a request—that he be given

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an unspecified additional extension of time to prepare and file an opposition to Defendants’

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Motion. (Id. at 4, 6-9.) So construed, the Court denies Plaintiff’s request. Though he is a

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pro se litigant facing difficult circumstances,2 Plaintiff must nevertheless comply with the

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procedural rules governing this case, including deadlines. See Ghazali v. Moran, 46 F.3d

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2Plaintiff

proffers a declaration and medical record showing that he became infected
with COVID-19 in December 2020, and was quite sick. (ECF No. 135 at 9-13.)
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52, 54 (9th Cir. 1995) (per curiam) (“Although we construe pleadings liberally in their favor,

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pro se litigants are bound by the rules of procedure.”) (citation omitted); see also Moore v.

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Corizon Health Servs., 788 F. App’x 503, 504 (9th Cir. 2019) (affirming the district court’s

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denial of the plaintiff’s motion to extend discovery because the plaintiff failed to establish

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good cause, relying in part on Ghazali). And here, the Court has already given Plaintiff

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multiple extensions of time. Judge Cobb gave Plaintiff an additional several months to

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respond to Defendants’ Motion. (ECF No. 129.) Judge Cobb then issued his R&R almost

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a month after Plaintiff’s deadline to respond to Defendants’ Motion expired, but Plaintiff

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did not file anything during that month. (ECF No. 132.) The Court then gave Plaintiff an

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additional several weeks to file his Objection. (ECF No. 134.) Moreover, in the Minute

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Order granting him that extension, the Court noted, “[n]o further extension will be granted

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given the length of the extension granted herein.” (Id.) While Plaintiff explains why he was

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unable to work on his case in December 2020, and to some lesser extent since then, he

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does not explain why he was unable to work on his case during the fall of 2020. (ECF No.

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135.) Plaintiff had ample time to respond to Defendant’s Motion, but has not. Plaintiff has

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not established good cause for a further extension of time. The Court declines to grant

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him one.

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On the merits of the R&R, the Court agrees with Judge Cobb’s analysis, and

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nothing in Plaintiff’s Objection convinces the Court it should reject any portion of the R&R.

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Plaintiff does not offer any argument, much less evidence, in his Objection that causes the

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Court to question Judge Cobb’s key findings as to Plaintiff’s Eighth Amendment claim that

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he received treatment for his back pain, and can show no more than a difference of opinion

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as to what type of pain medication would be most effective. (ECF Nos. 132 at 11, 135.) As

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to Judge Cobb’s recommendation on Plaintiff’s First Amendment claim, Plaintiff writes,

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“Defendant Ward did an affidavit that went uncontested by Plaintiff that Magistrate Cobb

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may have considered when he prepared his Report and Recommendation that granted

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Defendants’ motion for summary judgment.” (ECF No. 135 at 4.) This is effectively a

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concession that Judge Cobb did not err. Plaintiff let Ward’s affidavit go uncontested. While
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the Court is sympathetic to Plaintiff’s difficult circumstances, again, Plaintiff does not

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explain what prevented him from filing an opposition in much of the fall of 2020. (ECF No.

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135.) Regardless, Ward’s unrebutted testimony is only one reason the Court agrees with

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Judge Cobb’s recommendation as to Plaintiff’s First Amendment claim. Judge Cobb

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supported his recommendation with other unrebutted evidence as well. (ECF No. 132 at

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12.) The Court agrees with Judge Cobb that Defendants’ Motion should be granted.
The Court will therefore overrule Plaintiff’s Objection, and accept and adopt the

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R&R in full.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the issues before

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the Court.

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It is therefore ordered that Plaintiff’s objection (ECF No. 135) to the Report and

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Recommendation of U.S. Magistrate Judge William G. Cobb is overruled. The Report and

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Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 132) is accepted

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and adopted in full.

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It is further ordered that Defendants’ motion for summary judgment (ECF No. 120)
is granted.

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The Clerk of Court is directed to enter judgment accordingly and close this case.

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DATED THIS 24th Day of February 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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