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Wesley v. Gulick

United States District Court, D. Oregon

October 30, 2017

MICHAEL WESLEY, Plaintiff,
v.
DR. GULICK, Nurse BUTLER, Male Nurse Doe, NURSE NEIL, Dr. STEVEN SHELTON, Nurses Jane and John Does 1-10 Defendants.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.

         United States Magistrate Judge Stacie Beckerman issued Findings and Recommendation (“F&R”) in this case on August 25, 2017. ECF 42. Judge Beckerman recommended that Defendants' summary judgment motion (ECF 31) be granted as to both of Plaintiff's claims. Judge Beckerman also made recommendations on preliminary procedural matters raised in Defendants' motion (ECF 31) and Plaintiff's response (ECF 37). Judge Beckerman recommended that Defendants' motion to dismiss claims asserted against all Doe nurses be granted, that service by Plaintiff on Defendants be found proper, that both Plaintiff's and Defendants' motions to strike be denied, and that Defendants' motion to dismiss Plaintiff's claims relating to treatment in 2010 be granted as time barred.

         DISCUSSION

         A. Standards

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Magistrates Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate's recommendations for “clear error on the face of the record.”

         B. Plaintiff's Objections

         Plaintiff timely filed an objection (ECF 44), to which Defendants responded (ECF 45). Plaintiff's primary objection is that the F&R purportedly shifts the burden of proof from Defendants to Plaintiff, arguing that the F&R improperly required Plaintiff to prove his case, which is a higher burden than is required for a plaintiff to respond to a motion for summary judgment. Plaintiff objects specifically to the following conclusions:

“Wesley has failed to produce sufficient evidence to support a negligence claim resulting from Nurse Neill's March 27, 2013 catheter change, let alone to support a finding that any of the Defendants acted with gross negligence or deliberate indifference to his serious medical needs.” ECF 42 at 25.
“Wesley has not submitted any evidence to support a conclusion that Defendants were deliberately indifferent to his serious medical needs in connection with [the May 2013] catheter change, or his routine medical care.” ECF 42 at 26.
“Wesley has not submitted any expert or other medical evidence to demonstrate a material issue of fact regarding the appropriate standard of care, or that Defendants breached the standard of care, and therefore he has not met his burden to survive summary judgment.” ECF 42 at 27.

         Plaintiff also objects to the recommendation not to strike Dr. Steven Shelton's declaration, and the F&R's reliance on that declaration in making other findings and recommendations. Plaintiff further objects to several factual findings, including the dates and number of successful catheter changes, and the finding that administering antibiotics to which Plaintiff had a known allergy was within the standard of care. This Court has reviewed de novo the objected-to portions of the F&R as well as Plaintiff's objections, Defendants' response, the underlying briefing before Judge Beckerman, and the summary judgment record.

         This Court agrees with the F&R's reasoning and conclusions in recommending not to strike Dr. Shelton's declaration and adopts that portion of the F&R. Plaintiff argues that Dr. Shelton's declaration should be stricken because his testimony does not meet the requirements to qualify as expert testimony under Rule 702 of the Federal Rules of Evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). First, Daubert and its progeny are consistent with the rule that “an expert might draw a conclusion from a set of observations based on extensive and specialized experience.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156 (1999). Dr. Shelton's declaration is based on his extensive experience as the Oregon Department of Corrections medical director and his observation of Plaintiff's medical chart. Moreover, Plaintiff's reliance on Daubert at this stage in litigation is misplaced. At summary judgment, parties need not produce evidence that would be admissible at trial, so long as the party satisfies the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Block v. City of Los Angeles, 253 F.3d 410, 418-21 (9th Cir. 2001). Rule 56(c)(4) requires that declarations used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the declarant is competent to testify on the matters stated. Fed. R. Civ. P.56(c)(4). For the reasons stated in the F&R, Dr. Shelton's declaration meets these requirements, and reliance on the declaration is appropriate.

         This Court also adopts the portion of the F&R recommending that summary judgment be granted for Defendants on Plaintiff's Eighth Amendment claim. Plaintiff has not raised a genuine question of material fact as to whether Defendants were deliberately indifferent to Plaintiff's serious medical needs. The F&R stated and applied the correct burden of proof upon the parties at summary judgment. Summary judgment is appropriate if the evidence, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 37, 322 (1986). Although the initial burden is on the moving party to demonstrate that there is no genuine issue of material fact, the nonmoving party must then present sufficient evidence to establish that there is a genuine issue for trial. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 487 (1986) (citation omitted). In Eighth Amendment claims for inadequate medical care, a plaintiff must demonstrate that a defendant was deliberately indifferent to the plaintiff's serious ...


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