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3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

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6 JOSE ISAIAS CABRERA, Case No. 3:19-cv-00200-MMD-CSD

7 Plaintiff, ORDER v. 8 FRANCES KOCIJANSKI, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Jose Isaias Cabrera, who is an inmate in federal custody, brings this 13 action under

regarding alleged deliberate indifference to his serious 14 medical needs when he was a pretrial detainee at the Washoe County Detention Facility 15 (“WCDF”) in Reno, Nevada. (ECF No. 20.) Before the Court is a Report and 16 Recommendation (“R&R”) of United States Magistrate Judge William G. Cobb (ECF No. 17 41),1 recommending the Court deny Defendants Frances Kocijanski, Kaandice Schultz, 18 and Jennifer Snidow’s motion to dismiss (ECF No. 25 (“Motion”)). Defendants filed an 19 objection to the R&R.2 (ECF No. 44 (“Objection”).) Because the Court agrees with Judge 20 Cobb’s analysis in the R&R, finds the Objection unpersuasive, and as further explained 21 below, the Court will adopt the R&R and deny the Motion. 22 II. BACKGROUND 23 The Court incorporates by reference Judge Cobb’s recitation of Cabrera’s 24 allegations in his first amended complaint provided in the R&R, which the Court adopts. 25 26 1Judge Cobb retired after he issued this R&R. (ECF No. 43.) United States 27 Magistrate Judge Craig S. Denney now presides over this case. (Id.)

28 2Cabrera did not file a response to the Objection, though the deadline for doing so has passed. 2 improper service; and (2) because Cabrera’s claims are barred by the applicable statute 3 of limitations. (Id. at 3.) Judge Cobb recommends the Court deny the Motion in full and 4 give Cabrera an additional opportunity to attempt service of Defendants. (Id. at 3-9.) 5 In their Objection, Defendants only object to Judge Cobb’s recommendation that 6 the Court decline to dismiss this case on statute of limitations grounds. (ECF No. 44.) The 7 Court accordingly only summarizes Judge Cobb’s recommendation as to that argument 8 here. Judge Cobb specifically recommends the Court deny Defendants’ Motion to the 9 extent based on Defendants’ statute of limitations argument because the amputation of 10 Cabrera’s toe can be construed as an injury separate from the ingrown toenail and 11 infection that led to the amputation under Pouncil v. Tilton,

(9th Cir. 2012). 12 (ECF No. 41 at 7-8.) Because the amputation occurred within two years of Plaintiff’s filing 13 of his complaint, Judge Cobb reasons that Cabrera’s case is not barred by the applicable 14 statute of limitations. (Id. at 8.) 15 III. LEGAL STANDARD 16 This Court “may accept, reject, or modify, in whole or in part, the findings or 17 recommendations made by the magistrate judge.”

(b)(1). Where a party 18 timely objects to a magistrate judge’s report and recommendation, then the Court is 19 required to “make a de novo determination of those portions of the [report and 20 recommendation] to which objection is made.”

The Court’s review is thus de novo as 21 to Defendants’ statute of limitations argument because Defendants filed their Objection. 22 (ECF No. 44.) 23 IV. DISCUSSION 24 While Defendants’ Objection primarily relies on the nonbinding and distinguishable 25 Smith v. Zavodny, Case No. C10-5188BHS JRC,

(W.D. Wash. Feb. 26 14, 2011), report and recommendation adopted, Case No. C10-5188BHS,

28 2 R&R relied on the binding precedent of Pouncil (ECF No. 41 at 7-8). The Court finds that 3 Pouncil supports Judge Cobb’s analysis as to when the statute of limitations began to run 4 in this case, not Defendants’ analysis presented in their Objection, and will accordingly 5 overrule the Objection. Moreover, Defendants’ omission of any discussion of Pouncil in 6 their Objection renders their Objection even less persuasive considering that Judge Cobb 7 relied on Pouncil in the R&R. 8 The Ninth Circuit Court of Appeals’ opinion in Pouncil is colored by an important 9 presumption absent from both Defendants’ Motion and their Objection: that pro se 10 complaints are liberally construed to protect the right of pro se litigants to meaningful 11 access to the courts. See

. And substantively, the Pouncil court reached 12 an outcome that ultimately renders Defendants’ argument in their Objection unpersuasive: 13 given the choice between two dates as the trigger point to set the statute of limitations 14 running, the Pouncil court chose the later of the two. See

. The Pouncil court 15 affirmed “the district judge’s finding that the denial of Pouncil’s request for a conjugal visit 16 in 2008 is a separate, discrete act, rather than a mere effect of the 2002 denial. This is so, 17 because Pouncil alleges, and the record supports, that the second denial is a stand-alone 18 violation of Pouncil’s First Amendment and RLUIPA rights from which the statute of 19 limitations runs anew.”

. 20 Similarly, here, Cabrera alleges that his toenail became ingrown and Defendants 21 repeatedly failed to fix it. (ECF No. 41 at 1-3.) Then Defendants failed to do proper wound 22 care and his toe got so infected that he contracted MRSA and osteomyelitis. (Id. at 3.) And 23 then his toe had to be amputated, which has affected “how he can walk and run and 24 caused him further injuries as he tries to rebalance and compensate for the loss of his 25

26 3The plaintiff in Smith was trying to sue a doctor who casted his broken finger 21 years earlier and the order Defendants rely on did not address the plaintiff’s claims against 27 other doctors subsequently involved in his treatment. See

, at *1-*2. Moreover, the plaintiff in Smith did not suffer an analogously independent injury like 28 Cabrera’s amputation here that could have brought him within the applicable statute of limitations under Pouncil, which post-dates Smith in any event. See generally

2 Judge Cobb found that the amputation is a separate injury for statute of limitations 3 purposes under Pouncil. (Id. at 7-8.) The Court agrees with Judge Cobb on this crucial 4 point and accordingly overrules Defendants’ Objection. According to Cabrera’s 5 allegations, his toe would not have needed to be amputated, and his balance and gait 6 accordingly would never have been adversely affected if Defendants had not been 7 deliberately indifferent to his serious medical needs. The amputation is accordingly alleged 8 as a stand-alone violation of Cabrera’s rights and is thus an independently wrongful 9 violation bringing the filing of this case within the applicable statute of limitations given the 10 date the amputation occurred. (Id. at 7-8.) See also Pouncil,

. Moreover, 11 Judge Cobb’s recommendation is the just and correct one in view of the liberal 12 presumptions that apply to cases filed by pro se litigants. See

. 13 V. CONCLUSION 14 The Court notes that the parties made several arguments and cited to several cases 15 not discussed above. The Court has reviewed these arguments and cases and determines 16 that they do not warrant discussion as they do not affect the outcome of the issues before 17 the Court. 18 It is therefore ordered that Defendants’ Objection (ECF No. 44) to the Report and 19 Recommendation of United States Magistrate Judge William G. Cobb is overruled. The 20 Report and Recommendation (ECF No. 41) is accepted and adopted in full. 21 It is further ordered that Defendants’ motion to dismiss (ECF No. 25) is denied. 22 It is further ordered that Cabrera’s deadline to complete service of Defendants is 23 extended to 90 days from the date of entry of this order. 24 The Clerk of Court is directed to issue summonses for all three Defendants and 25 deliver the same, along with sufficient copies of the amended complaint (ECF No. 20) and 26 this order, to the United States Marshals’ Service for service on Defendants. 27 The Clerk of Court is further directed to send Cabrera three USM-285 forms along 28 with the instructions for completing the forms. 1 It is further ordered that Cabrera must return the completed USM-285 forms to the 2 || United States Marshals’ Service at 400 South Virginia Street, Room 201, Reno, Nevada 3 || 89501 within 21 days of the date of entry of this order. 4 It is further ordered that, if the United States Marshals’ Service is unable to serve 5 || any Defendant and Cabrera wishes to have service attempted again, he must file a timely 6 || motion specifying another address, or whether some other manner of service should be 7 || attempted. 8 It is further ordered that, if Cabrera fails to timely and properly complete service in 9 || line with this order, the Court may dismiss without prejudice and without further advance 10 || notice any and all Defendants who are not properly served. 11 DATED THIS 18" Day of March 2022. 12

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