United States District Court, D. Montana, Helena Division
L. Christensen, Chief District Judge United States District
States Magistrate Judge John T. Johnston entered his Findings
and Recommendations in this case on January 18, 2019,
recommending that Defendant's Motion for Summary Judgment
should be granted. (Doc. 87 at 22.) Plaintiff Jacob
Banschbach timely filed an objection and is therefore
entitled to de novo review of those findings and
recommendations to which he has specifically objected. 28
U.S.C. § 636(b)(1)(C). Absent objection, this Court
reviews findings and recommendations for clear error.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc); Thomas v. Am, 474 U.S.
140, 149 (1985). Clear error exists if the Court is left with
a "definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (citations omitted). "A party
makes a proper objection by identifying the parts of the
magistrate's disposition that the party finds
objectionable and presenting legal argument and supporting
authority, such that the district court is able to identify
the issues and the reasons supporting a contrary
result." Montana Shooting Sports Ass'n
v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18,
2010) (citation omitted).
sued Defendant Dr. Kohut under 42 U.S.C. § 1983 for
violation of his Eighth Amendment rights based upon alleged
inadequate medical care. (Doc. 87 at 12-13.) In order to prevail
on this claim, Banschbach must show both that his medical
needs were objectively serious, and that Dr. Kohut possessed
a sufficiently culpable state of mind. Wilson v.
Seiter, 501 U.S. 294, 299 (1991); McKinney v.
Anderson, 959 F.2d 853, 854 (9th Cir. 1992). The
requisite state of mind Banschbach must show is deliberate
indifference. Hudson v. McMillan, 503 U.S. 1, 5
(1992). Assuming that Banschbach's medical needs were
objectively serious, Judge Johnston determined that, at most,
Banschbach could show only a "disagreement between
himself and Dr. Kohut regarding what medications were
necessary to treat his medical issues." (Doc. 87 at 17.)
However, a "difference of opinion between a physician
and the prisoner-or between medical professionals-concerning
what medical care is appropriate does not amount to
deliberate indifference." Snow v. McDaniel, 681
F.3d 978, 987 (9th Cir. 2012), overruled on other
grounds, Peralta v. Dillard, 744 F.3d 1076, 1083 (9th
Cir. 2014). A difference of opinion may rise to the level of
deliberate indifference only if the prisoner shows that the
defendant's chosen course of treatment was medically
unacceptable and in conscious disregard of an excessive risk
to plaintiffs health. Jackson v. Mcintosh, 90 F.3d
330, 332 (9th Cir. 1996). Banschbach did not make this
showing and, consequently, Judge Johnston determined that
summary judgment was appropriate on Banschbach's Eighth
objection, Banschbach claims that a "genuine issues
exists as to Kohut's ability to be trustworthy in his
assertions" to the Court. (Doc. 88 at 2.) Banschbach
relies on the fact that the Department of Corrections
terminated Dr. Kohut to support his assertion that the Court
cannot trust any representation made by Dr. Kohut.
(Id.) However, Judge Johnston determined that
"information regarding Dr. Kohut's termination"
did not change his analysis. (Doc. 87 at 20.) This is because
Judge Johnston's analysis turned on the fact that several
other doctors at the prison had treated Banschbach during the
time frame in question and had similarly determined not to
prescribe him the painkiller he sought but to prescribe him
alternative medications. (Doc. 87 at 16-17.) Banschbach
cannot establish an essential component of his
claim-deliberate indifference-without a showing that Dr.
Kohut's decision not to prescribe him the painkiller he
requested was "medically unacceptable under the
circumstances" and chosen "in conscious disregard
of an excessive risk to plaintiffs health."
Jackson, 90 F.3d at 332. Banschbach's objection
fails to address this fatal deficiency in his case and is
overruled. Accordingly, IT IS ORDERED that Judge
Johnston's Order and Findings and Recommendations (Doc.
87) are ADOPTED IN FULL and Defendant's Motion for
Summary Judgment (Doc. 67) is GRANTED.
FURTHER ORDERED that the Clerk of Court is directed to close
the case and enter judgment in favor of Defendant pursuant to
Rule 58 of the Federal Rules of Civil Procedure.
FURTHER ORDERED that the Clerk of Court is directed to have
the docket reflect that the Court certifies, pursuant to
Federal Rule of Appellate Procedure 24(a)(3)(A), that any
appeal of this decision would not be taken in good faith and
that no reasonable person could suppose an appeal would have
 Although Banschbach alleged other
claims against Dr. Kohut, those claims have either been
dismissed or recommended for summary judgment without
specific objection. Consequently, the Court focuses only on