United States District Court, D. Idaho
ORDER ON REPORT AND RECOMMENDATION
J. Lodge United States District Judge
15, 2016, United States Magistrate Judge Candy W. Dale issued
a Report and Recommendation (“Report”),
recommending that the Defendants' Motions for Summary
Judgment be granted. (Dkt. 36.) 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). The Plaintiff in this case has filed written
objections to which the Defendants have responded. (Dkt. 38,
39, 40.) The matter is ripe for the Court's
consideration. See Local Civ. R. 72.1(b)(2); 28
U.S.C. § 636(b)(1)(B).
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. The Ninth Circuit has interpreted the
requirements of 28 U.S.C. § 636(b)(1)(C) stating:
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….“to the
extent de novo review is required to satisfy Article
III concerns, it need not be exercised unless requested by
the parties.” Neither the Constitution nor the statute
requires a district judge to review, de novo,
findings and recommendations that the parties themselves
accept as correct.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (citations omitted); see also Wang v.
Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005).
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)).
complete procedural background and facts of this case are
well articulated in the Report and the Court incorporates the
same in this Order. Plaintiff initiated this action by filing
his Complaint against the Defendants raising claims under 42
U.S.C. § 1983 alleging violation of Plaintiff's
Eighth Amendment rights and state law claims of medical
negligence. (Dkt. 3.) In general, the claims allege the
Defendants were deliberately indifferent and medically
negligent in addressing the Plaintiffs serious medical needs
concerning his hip pain. (Dkt. 3.) Defendants filed the
instant Motions for Summary Judgment which the Report
recommends granting. (Dkt. 26, 28.)
Court has reviewed the original briefing of the parties, the
Report, Plaintiff's objections and materials, and the
Defendants' responses as well as 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
these principles here, this 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.
Further, the Court has reviewed the objected portions of the
Report de novo and finds as follows.
objections, Plaintiff has filed several pages of notes he
personally recorded during 2012-2016 regarding his medical
care received from Defendants and Idaho Department of
Correction offender concern forms and grievance forms dating
back to March of 2013 and continuing into 2015. (Dkt. 38.)
These materials reference two incidents where Plaintiff
slipped and fell while at the jail resulting in his hip,
neck, and back pain. (Dkt. 38.) Plaintiff's notes and
records reflect the Plaintiff's reports regarding his hip
pain and complaints concerning his care. (Dkt. 38-1, 38-2.)
Notably in these materials the Plaintiff represents he had
hip surgery in mid-April of 2016; a fact that the Report
states was unknown. (Dkt. 36 at 11 n. 3) (Dkt. 38.) Plaintiff
further alleges that following his surgery he was again
placed in Dr. Agler's care which he argues was
deliberately indifferent. (Dkt. 38 at 9.) Attached to
Plaintiff's objections are additional records including:
reports from Intermountain Medical Imaging, Dr. Roman
Schwartsman's recommendation for hip surgery, and Dr.
Alex Homaechevarria's recommendation for an
intraarticular steroid injection. (Dkt. 38-2.) Defendants
challenge this newly filed material as being untimely and
improperly raising new allegations not made in his Complaint
concerning his care following his hip replacement surgery.
(Dkt. 39, 40.) Regardless of these new materials, Defendants
maintain the Report is correct.
Court finds the Plaintiff's new allegations concerning
Dr. Agler's care post-surgery are untimely and cannot be
properly raised in his objections to the
Report. Even if the Court considered the new
claims, however, summary judgment would still be proper. The
allegations concerning Dr. Agler's post-surgery care are
made based on Plaintiff's own Affidavit and notes as well
as his offender concern forms. (Dkt. 38-1, 38-2, 38-3, Aff.
Ferguson.) Defendant Agler has responded with records
relating to his post-surgical care of the Plaintiff while in
the Idaho State Correctional Institution's infirmary.
(Dkt. 39-2, 39-3.) Considering the materials filed by both
parties regarding the Plaintiff's post-surgical care, the
Court concludes the materials show only a difference in
judgment between Plaintiff and Defendant regarding the
appropriate medical treatment which is insufficient to
establish a claim for deliberate indifference and/or medical
negligence. See Sanchez v. Vild, 891 F.2d 240, 242
(9th Cir. 1989); Toguchi v. Chung, 391 F.3d 10151,
1058 (9th Cir. 2004); Idaho Code § 6-1013. Therefore, there
is no question of fact presented based on the post-surgery
care allegations and summary judgment is appropriate.
Plaintiff's objection to the Report regarding his care
prior to his surgery, the Court finds the Plaintiff's
objection materials and arguments are the same or consistent
with the record that was before the Magistrate Judge.
(compare Dkt. 3 and Dkt. 38.) Some of the documents attached
to Plaintiff's objections are duplicates of the same
documents attached to the Complaint. Other documents are
newly submitted but do not provide any new information.
Having reviewed the record de novo, this Court finds