(PC) Solano v. Tate et al

Filing 47

ORDER Adopting #42 Findings and Recommendations, Granting in Part and Denying in Part Defendants' Motion for Summary Judgment #31 , signed by District Judge Dale A. Drozd on 3/5/18. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LIBRADO SOLANO, JR.,

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Plaintiff,

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v.
DR. HAROLD TATE, et al.,
Defendants.

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No. 1:15-cv-00756-DAD-SAB (PC)

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING IN
PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
(Doc. Nos. 31, 42)

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Plaintiff Librado Solano, Jr. is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On September 1, 2017, the assigned magistrate judge issued findings and

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recommendations recommending that defendants’ motion for summary judgment be granted in

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part and denied in part. (Doc. No. 42.) More specifically, it was recommended that summary

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judgment be granted as to plaintiff’s claims against defendant Dr. Tate for failure to prescribe

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morphine, failure to examine, delay in performing surgery, and forged refusal of treatment form

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on December 18, 2013, and denied as to plaintiff’s claim of mistreatment during his December

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19, 2013 medical examination, and granted in all respects as to defendant Dr. Yin. (Id.) The

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findings and recommendations were served on the parties and contained notice that objections
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thereto were to be filed within thirty days.
Defendant Dr. Tate filed objections on September 28, 2017. (Doc. No. 44.) Therein

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defendant Tate argues that the magistrate judge incorrectly concluded that an exam of plaintiff by

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Dr. Tate occurred on December 19, 2013, and that plaintiff was forced to walk 100 yards to his

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cell just two days after surgery, when in fact December 19, 2013 was actually four days after

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plaintiff’s surgery. Defendant’s objection is immaterial as the fact of whether it was two or four

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days after plaintiff’s surgery, the analysis remains the same. As explained in the magistrate

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judge’s findings and recommendations, based on the conflicting accounts, there is a genuine issue

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of material fact as to whether Dr. Tate even examined plaintiff on December 19, 2013, and then

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forced him to walk 100 yards back to his cell in deliberate indifference to his serious medical

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needs following his surgery on December 15, 2013. The disputed facts do not hinge on whether

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Dr. Tate’s actions took place two days or four days following plaintiff’s surgery. Furthermore,

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although plaintiff’s surgery took place on December 15, 2013, he was not discharged from the

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hospital and returned to the prison until December 17, 2013, just two days prior to the December

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19, 2013 actions at issue.

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

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

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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:
1. The findings and recommendations issued September 1, 2017 (Doc. No. 42) are
adopted in full;

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2. Defendant Dr. Yin’s motion for summary judgment (Doc. No. 31) is granted; and

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3. Defendant Dr. Tate’s motion for summary judgment (Doc. No. 31) is granted in

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part and denied in part as follows:
a. Granted as to plaintiff’s claims for failure to prescribe morphine, failure to

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examine, delay in surgery, and forged refusal of treatment form on

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December 18, 2013; and
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b. Denied as to plaintiff’s claim of mistreatment during the examination on

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December 19, 2013.
IT IS SO ORDERED.
Dated:

March 5, 2018
UNITED STATES DISTRICT JUDGE

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