Foster v. Ugwueze

Filing 42

ORDER ADOPTING 40 FINDINGS and RECOMMENDATIONS; ORDE DENYING 33 Plaintiff's Motion for Appointment of Expert Witness; ORDER DENYING 29 Defendants' Motion for Summary Judgment; ORDER GRANTING 34 Plaintiff's Motion for Extension of Time Nunc Pro Tunc; ORDER GRANTING 38 Defendant's Motion for Extension of Time Nunc Pro Tunc; and ORDER GRANTING 32 Plaintiff's Motion for Additional Discovery signed by District Judge Lawrence J. O'Neill on 5/22/2015. Defendants are ordered to produce Plaintiff's relevant medical records within fourteen (14) days. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL L. FOSTER,

12
13
14
15

Plaintiff,

Case No. 1: 13-cv-00659-LJO-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO:

v.
GODWIN UGWUEZE, et al.,
Defendants.

16
17

1) DENY PLAINTIFF’S MOTION FOR
APPOINTMENT OF EXPERT WITNESS
(ECF NO. 33)
2) DENY DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT (ECF NO. 29)
3) GRANT PLAINTIFF’S MOTION FOR
EXTENSION OF TIME NUNC PRO TUNC
(ECF NO. 34)

18
19

4) GRANT DEFENDANT’S MOTION FOR
EXTENSION OF TIME NUNC PRO TUNC
(ECF NO. 38)

20
21

5) GRANT PLAINTIFF’S MOTION FOR
ADDITIONAL DISCOVERY (ECF NO. 32)

22
23
24
25
26
27
28

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
rights action brought pursuant to 42 U.S.C. § 1983.

The action proceeds against

Defendants Ugwueze and Enenmoh on Plaintiff’s Eighth Amendment inadequate
medical care claim.

(ECF No. 15.)

The matter was referred to a United States

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United
States District Court for the Eastern District of California.
On April 17, 2015, the Magistrate Judge issued Findings and Recommendations
to deny Defendants’ motion for summary judgment (ECF No. 29.), deny Plaintiff’s
motion for appointment of an expert witness (ECF No. 33.), grant nunc pro tunc to
March 30, 2015 Plaintiff’s motion for extension of time (ECF No. 34.), grant nunc pro
tunc to April 8, 2015 Defendants’ motion for extension of time, and grant Plaintiff’s
motion for additional discovery (ECF No. 32.).

On May 1, 2015, Defendants filed

objections to the Findings and Recommendations. (ECF No. 41.) Plaintiff has not filed
a reply and the time to do so has passed.
In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has
conducted a de novo review of this case. Having carefully reviewed the entire file, the
Court finds the Findings and Recommendations to be supported by the record and by
proper analysis.
Defendants contend that contrary to the Magistrate Judge’s finding that it was
undisputed that Plaintiff suffered a serious medical need, Defendant Ugwueze testified
in his declaration that Plaintiff’s condition was not serious, and Plaintiff failed to present
expert testimony to prove otherwise and to establish Defendants were deliberately
indifferent.
The Court has reviewed Defendants’ motion for summary judgment and reply.
Defendants did not present any argument in their motion disputing that Plaintiff’s
condition was “serious” under Eighth Amendment standards.

Defendant Ugwueze

testified in his declaration that Plaintiff’s condition was not “serious” in the sense that it
would not cause Plaintiff death or impairment of function. However, neither death nor
impairment of function is necessary to establish a serious medical need. See McGuckin
v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (“The existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment;

28
2

1
2
3
4
5
6
7
8
9
10
11
12

the presence of a medical condition that significantly affects an individual's daily
activities; or the existence of chronic and substantial pain are examples of indications
that a prisoner has a ‘serious’ need for medical treatment.”).

Defendant Ugwueze’s statement could be construed as an argument that Plaintiff’s
condition was not important, worthy of comment, chronic, or did not provide Plaintiff with
substantial pain and therefore not a serious medical need under the Eighth Amendment,
Plaintiff presented contrary evidence in his medical records, presenting a genuine issue
of material fact precluding summary judgment in Defendants’ favor.

15

Recommendations.
Accordingly, it is HEREBY ORDERED that:
1.

2.

Defendants’ motion for summary judgment (ECF No. 29.) is DENIED;

3.

Plaintiff’s motion for appointment of an expert witness (ECF No. 33.) is
DENIED;

4.

18
19

Plaintiff’s motion for extension of time (ECF No. 34.) is GRANTED nunc
pro tunc to March 30, 2015;

5.

20
21

The Court adopts the Findings and Recommendations (ECF No. 40.) filed
on April 17, 2015 in full;

16
17

Therefore,

Defendants’ objections do not raise an issue of law or fact under the Findings and

13
14

Additionally, even if

Defendants’ motion for extension of time (ECF No. 38.) is GRANTED nunc
pro tunc to April 8, 2015; and

6.

22

Plaintiff’s motion for additional discovery (ECF No. 32.) is GRANTED.
Defendants are ordered to produce Plaintiff’s relevant medical records

23

within fourteen (14) days of service of this order.
24 IT IS SO ORDERED.
25

Dated:

/s/ Lawrence J. O’Neill

May 22, 2015

UNITED STATES DISTRICT JUDGE

26
27
28
3