United States District Court, D. Idaho
ORDER ON REPORT AND RECOMMENDATION
J. Lodge United States District Judge
United States Magistrate Judge Ronald E. Bush issued a Report
and Recommendation in this matter. (Dkt.83.) Pursuant to 28
U.S.C. § 636(b)(1), the parties had fourteen days in
which to file written objections to the Report and
Recommendation. Defendant Scott Lossman filed an objection to
the Report and Recommendation. Plaintiff Jon Houser filed a
response to the objection and the matter is now ripe for this
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. §
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. 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)).
case, Judge Bush recommended granting summary judgment as to
Defendants Corizon and Garth Gulick, but denying summary
judgment as to Defendant Dr. Lossman. Since Plaintiff did not
object to the recommendation to grant summary judgment, the
Court will not conduct a de novo review of that
portion of the Report and Recommendation. The Court has,
however, reviewed the Report and Recommendation as to these
Defendants as well as the record in this matter and finds no
clear error on the face of the record for the recommendation
of granting summary judgment.
Court will review de novo the recommendation to deny
summary judgment on the claims in Count 3 against Dr.
Lossman. For the reasons set forth below, the Court finds the
Report and Recommendation to be well-founded in the law based
on the facts of this particular case and this Court is in
agreement with the same.
Court incorporates the factual background as set forth in the
Report and Recommendation, pp. 1-3.
an Eighth Amendment deliberate indifference case. The
Plaintiff, Jon Houser, is a man in his late fifties who
suffers from Hepatitis C as well as arthritis in his left
knee. At the pertinent time periods, Houser was incarcerated
at the Idaho State Correctional Institution
(“ISCI”). The Defendants are Corizon Medical
Services (hereafter “Corizon”) and two Corizon
physicians, Dr. Scott Lossman and Dr. Garth Gulick.
crux of Plaintiff's case alleges poor care received from
Defendants regarding treatment of his left knee and of his
Hepatitis C. The Complaint (which Plaintiff filed pro
se) raised numerous issues with respect to the treatment
he received for these conditions; however, the issues have
been winnowed considerably. At this juncture, Plaintiff's
allegations of deliberate indifference are twofold. First, he
argues that the decision to allow him to undergo arthroscopic
surgery on his knee constituted deliberate indifference,
because the regimen of his Hepatitis C medications suppressed
his immune system and made him vulnerable to infection.
Therefore, he contends that he should not have been allowed
to undergo surgery in the first place.
also complains of Defendants' treatment of a MRSA
infection contracted after surgery, affecting a knee joint.
According to Plaintiff, the MRSA infection was serious and
life-threatening, was not discovered quickly enough, and was
not properly recognized as an emergency when it was
discovered. Further, he alleges that poor management of this
infection caused him to undergo two additional debridement
procedures, and to suffer some permanent loss of mobility.
complaint was filed in January of 2013 (after an initial
review order had been issued by the Court). (Dkt. 1). In
December of 2013, the Defendants filed a partial motion to
dismiss (that was later converted into a motion for summary
judgment) arguing that Plaintiff had not properly exhausted
intra-prison remedies as required by the Prison Litigation
Reform Act (“PLRA”). On August 27, 2014, the
Court dismissed certain counts on exhaustion grounds but