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