Xavier v. Roche et al

Filing 127

ORDER signed by District Judge Kimberly J. Mueller on 09/22/16 ordering the findings and recommendations filed 7/11/16 121 are adopted in full; and defendants' motion for summary judgment 114 is granted as to defendant Friend and denied as to defendant Weaver. (Plummer, M)

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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 GARY R. XAVIER, 12 13 14 15 No. 2:09-cv-0783 KJM CKD P Plaintiff, v. ORDER S.M. ROCHE, et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 11, 2016, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the file, the court 26 finds the findings and recommendations to be supported by the record and by proper analysis. 27 The court writes separately to address plaintiff’s objection that defendant Friend violated 28 plaintiff’s Eighth Amendment rights by failing to take any immediate action to alleviate 1 1 plaintiff’s pain and instead directed him to continue the pain medication ordered by defendant 2 Weaver and ordered him returned to his “cell in a lock-down unit.” ECF No. 125 at 4. 3 To defeat defendant Friend’s motion for summary judgment, plaintiff was required to 4 present evidence, sufficient to raise a triable issue of material fact, that defendant Friend’s acts 5 and omissions were “medically unacceptable under the circumstances” and that defendant Friend 6 “chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v. 7 McIntosh, 90 F.3d 330, 331 (9th Cir. 1996) (internal citations omitted). The evidence presented 8 by plaintiff does not meet this burden. After de novo review, the court finds no evidence that the 9 alleged acts and omissions by defendant Friend were the product of deliberate indifference to 10 plaintiff’s serious medical needs. For this additional reason, defendant Friend’s motion for 11 summary judgment will be granted. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. The findings and recommendations filed July 11, 2016, are adopted in full; and 14 2. Defendants’ motion for summary judgment (ECF No. 114) is granted as to defendant 15 Friend and denied as to defendant Weaver. 16 DATED: September 22, 2016. 17 18 UNITED STATES DISTRICT JUDGE 19 20 2/xavi0783.805 21 22 23 24 25 26 27 28 2

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