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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LIBRADO SOLANO, JR., 12 Plaintiff, 13 14 15 v. DR. HAROLD TATE, et al., Defendants. 16 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) 17 18 19 20 21 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 22 recommendations recommending that defendants’ motion for summary judgment be granted in 23 part and denied in part. (Doc. No. 42.) More specifically, it was recommended that summary 24 judgment be granted as to plaintiff’s claims against defendant Dr. Tate for failure to prescribe 25 morphine, failure to examine, delay in performing surgery, and forged refusal of treatment form 26 on December 18, 2013, and denied as to plaintiff’s claim of mistreatment during his December 27 19, 2013 medical examination, and granted in all respects as to defendant Dr. Yin. (Id.) The 28 findings and recommendations were served on the parties and contained notice that objections 1 1 2 thereto were to be filed within thirty days. Defendant Dr. Tate filed objections on September 28, 2017. (Doc. No. 44.) Therein 3 defendant Tate argues that the magistrate judge incorrectly concluded that an exam of plaintiff by 4 Dr. Tate occurred on December 19, 2013, and that plaintiff was forced to walk 100 yards to his 5 cell just two days after surgery, when in fact December 19, 2013 was actually four days after 6 plaintiff’s surgery. Defendant’s objection is immaterial as the fact of whether it was two or four 7 days after plaintiff’s surgery, the analysis remains the same. As explained in the magistrate 8 judge’s findings and recommendations, based on the conflicting accounts, there is a genuine issue 9 of material fact as to whether Dr. Tate even examined plaintiff on December 19, 2013, and then 10 forced him to walk 100 yards back to his cell in deliberate indifference to his serious medical 11 needs following his surgery on December 15, 2013. The disputed facts do not hinge on whether 12 Dr. Tate’s actions took place two days or four days following plaintiff’s surgery. Furthermore, 13 although plaintiff’s surgery took place on December 15, 2013, he was not discharged from the 14 hospital and returned to the prison until December 17, 2013, just two days prior to the December 15 19, 2013 actions at issue. 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 17 de novo review of this case. Having carefully reviewed the entire file, including defendants’ 18 objections, the court finds the findings and recommendations to be supported by the record and 19 by proper analysis. 20 21 22 Accordingly: 1. The findings and recommendations issued September 1, 2017 (Doc. No. 42) are adopted in full; 23 2. Defendant Dr. Yin’s motion for summary judgment (Doc. No. 31) is granted; and 24 3. Defendant Dr. Tate’s motion for summary judgment (Doc. No. 31) is granted in 25 26 part and denied in part as follows: a. Granted as to plaintiff’s claims for failure to prescribe morphine, failure to 27 examine, delay in surgery, and forged refusal of treatment form on 28 December 18, 2013; and 2 b. Denied as to plaintiff’s claim of mistreatment during the examination on 1 2 3 4 December 19, 2013. IT IS SO ORDERED. Dated: March 5, 2018 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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