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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY R. XAVIER,

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No. 2:09-cv-0783 KJM CKD P

Plaintiff,
v.

ORDER

S.M. ROCHE, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On July 11, 2016, the magistrate judge filed findings and recommendations, which were

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served on all parties and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the

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findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the file, the court

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finds the findings and recommendations to be supported by the record and by proper analysis.

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The court writes separately to address plaintiff’s objection that defendant Friend violated

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plaintiff’s Eighth Amendment rights by failing to take any immediate action to alleviate
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plaintiff’s pain and instead directed him to continue the pain medication ordered by defendant

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Weaver and ordered him returned to his “cell in a lock-down unit.” ECF No. 125 at 4.

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To defeat defendant Friend’s motion for summary judgment, plaintiff was required to

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present evidence, sufficient to raise a triable issue of material fact, that defendant Friend’s acts

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and omissions were “medically unacceptable under the circumstances” and that defendant Friend

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“chose this course in conscious disregard of an excessive risk to plaintiff’s health.” Jackson v.

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McIntosh, 90 F.3d 330, 331 (9th Cir. 1996) (internal citations omitted). The evidence presented

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by plaintiff does not meet this burden. After de novo review, the court finds no evidence that the

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alleged acts and omissions by defendant Friend were the product of deliberate indifference to

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plaintiff’s serious medical needs. For this additional reason, defendant Friend’s motion for

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summary judgment will be granted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed July 11, 2016, are adopted in full; and

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2. Defendants’ motion for summary judgment (ECF No. 114) is granted as to defendant

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Friend and denied as to defendant Weaver.

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DATED: September 22, 2016.

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UNITED STATES DISTRICT JUDGE
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2/xavi0783.805

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