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Sherrod v. Ryan

United States District Court, D. Arizona

March 20, 2018

Roosevelt Marquize Sherrod, Plaintiff,
v.
Charles L. Ryan, et al., Defendants.

          ORDER

          Honorable Diane J. Humetewa United States District Judge

         Plaintiff Roosevelt Marquize Sherrod, who is currently confined in the Arizona State Prison Complex (ASPC)-Florence, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 73.) Defendants Pratt and Ryan move for summary judgment, and Plaintiff opposes.[1] (Docs. 84, 87.) Also before the Court is the Report and Recommendation (R&R) of Magistrate Judge Eileen S. Willett recommending that the Court dismiss Defendants Ibrahim, Maranzana, Stueward, Kevis, and Okafor without prejudice for failure to timely effect service. (Doc. 83.)

         The Court will adopt the R&R and dismiss Defendants Ibrahim, Maranzana, Stueward, Kevis, and Okafor without prejudice. The Court will grant Defendants Pratt and Ryan's Motion for Summary Judgment and terminate this action.

         I. Background

         In his First Amended Complaint, Plaintiff alleges that he was diagnosed with HIV in 2008 while he was confined at the Maricopa County Durango Juvenile Detention Center and that he continued to test positive for HIV/AIDS through 2015. (Doc. 73 at 4.) Plaintiff claims that Defendants Nurse Practitioner Maranzana, Dr. Steve Ibrahim, medical provider Craig Kevis, Dr. Joachin Okafor, and Dr. Stueward do not believe that Plaintiff has HIV/AIDS and that they deprived him of medication in violation of his Eighth Amendment rights. (Id.) Plaintiff also claims that on June 10 and December 17, 2014, he submitted grievances to Defendants Arizona Department of Corrections (ADC) Director Charles Ryan and ADC employee Richard Pratt seeking treatment for AIDS, but Defendants Ryan and Pratt “refused to act or consider [Plaintiff's] truth” that he suffers from the AIDS virus. (Id.) On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated an Eighth Amendment medical claim and directed Defendants Pratt, Ryan, Ibrahim, Maranzana, Stueward, Kevis, and Okafor to answer. (Docs. 26, 74.)

         II. Report and Recommendation

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.'”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [magistrate judge's] recommendations to which the parties object”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the [R&R] to which objection is made.”).

         On January 9, 2018, the Magistrate Judge recommended dismissing Defendants Ibrahim, Maranzana, Stueward, Kevis, and Okafor without prejudice for failure to serve. (Doc. 83.) Neither party filed objections to the R&R. The Court is therefore not obligated to review the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Fed.R.Civ.P. 72(b)(3) (“[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to”). Even so, the Court has reviewed Judge Willett's R&R and incorporates and adopts it. Accordingly, Defendants Ibrahim, Maranzana, Stueward, Kevis, and Okafor are dismissed from the action without prejudice for failure to serve.

         III. Motion for Summary Judgment

          A. Legal Standards

         1. Summary Judgment

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider ...


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