Tyler v. Alameida, et al

Filing 191

ORDER Adopting 189 FINDINGS AND RECOMMENDATIONS DENYING Plaintiff's 174 Motion for Summary Judgment signed by District Judge Lawrence J. O'Neill on 3/14/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ELONZA JESSE TYLER,

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CASE NO. 1:04-cv-06638-LJO-BAM PC

Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS REGARDING
PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT

v.
ALAMEIDA, et al.,

(ECF No. 174, 179)
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Defendants.
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Plaintiff Elonza Jesse Tyler is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C. § 1983. Following remand by the Ninth Circuit of
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Appeal, this action is proceeding against Defendant Smith for deliberate indifference in violation of
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the Eighth Amendment. The matter was referred to a United States Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On February 25, 2013, the Magistrate Judge issued Findings and Recommendations that
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Plaintiff’s motion for summary judgment be denied. The Findings and Recommendations were
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served on the parties and contained notice that any objections to the Findings and Recommendations
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were to be filed within twenty-one (21) days. On March 8, 2013, Plaintiff filed objections.
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In his objections, Plaintiff complains that the Magistrate Judge failed to consider his claim
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that Defendant Smith was deliberately indifferent to a serious risk of harm. Contrary to Plaintiff’s
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complaint, the Magistrate Judge considered Plaintiff’s claim of deliberate indifference, but found
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a genuine dispute of material fact regarding the question of whether Defendant Smith was
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responsible for the alleged delay in receiving an orthopedic consult and surgery. (ECF No. 189, p.

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9.) Moreover, Plaintiff fails to address the Magistrate Judge’s determination that the lack of essential

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discovery available at the time of Defendant’s opposition provided a separate and independent basis

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to deny Plaintiff’s motion for summary judgment. (ECF No. 189, p. 10.)

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s

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objections, the Court finds the Findings and Recommendations to be supported by the record and

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by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, issued February 25, 2013, are adopted in full;
and

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2.

Plaintiff’s motion for summary judgment is DENIED.

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IT IS SO ORDERED.

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Dated:

March 14, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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