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Houser v. Corizon

United States District Court, D. Idaho

October 27, 2016

JON HOUSER, Plaintiff,
CORIZON, et al., Defendants.


          Edward J. Lodge United States District Judge

         Chief 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 Court's 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 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)).

         In this 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.

         The 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.


         The Court incorporates the factual background as set forth in the Report and Recommendation, pp. 1-3.

         This is 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.

         The 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.

         Plaintiff 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.

         The 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 ...

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