Wagner v. Posner et al

Filing 120

ORDER signed by Judge Kimberly J. Mueller on 7/5/12 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 3/20/12 108 are ADOPTED in part and rejected in one respect only; and Defendants' 5/6/11 MOTION for SUMMARY JUDGMENT 76 is GRANTED, except as to the claim that defendant Nangalama did not timely prescribe antiviral medications and the claim that defendant Sahota approved non-formulary medications for Plaintiff without examining him. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLINTON WAGNER,

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Plaintiff,

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No. Civ S-09-3166 KJM KJN P

vs.
MOSS POSNER, et al.,
Defendants.

ORDER
/

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

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

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

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On March 20, 2012, the magistrate judge filed findings and recommendations,

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

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the findings and recommendations were to be filed within twenty-one days. Plaintiff has filed

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objections to the findings and recommendations.

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

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

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the court finds the findings and recommendations to be supported by the record and by the

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proper analysis, except as explained below.
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In his amended complaint, plaintiff alleges that defendant Sahota cancelled

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plaintiff’s nutritional supplements without examining him because it was too costly to provide

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non-lactose supplements that plaintiff, who is lactose intolerant, required. He also alleges that

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defendant Sahota approved non-formulary medication for plaintiff, again without examining

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him. ECF No. 43 at 2-3.

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Defendant Sahota argued that there were no disputed facts barring the entry of

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judgment because plaintiff failed to respond to the requests for admissions asking plaintiff to

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admit that Sahota did not violate his Eighth Amendment rights and plaintiff had no facts to

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support any of the claims against Sahota. See ECF Nos. 76-1 at 17-18, 25-26 & 76-2 at 20-21

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¶¶ 166-173; see Fed. R. Civ. P. 36(a)(3) (matter is deemed admitted if party does not respond to

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request for admission). Counsel Matthew Wilson signed a declaration averring that the requests

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for admission were attached as Exhibit C. ECF No. 76-4 at 2 ¶ 5. That exhibit, however, was a

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set of interrogatories, not the requests for admissions he claims plaintiff did not respond to. ECF

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No. 76-4 at 26-31. Defendant has not provided sufficient support for his claim that plaintiff is

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bound by any admissions, even if it were appropriate to rely on a pro per party’s failure to deny

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requests that he admit legal conclusions and respond to questions on ultimate issues. Cf.

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Jefferson v. Perez, No. Civ. S-09-3008 GEB CKD P, 2012 WL 671917, at *1 (E.D. Cal. Feb. 29,

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2012); Holston v. DeBanca, No. Civ. S-09-2954 KJM DAD P, 2012 WL 843917, at *13 (E.D.

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Cal. Mar. 12, 2012). To the extent the magistrate judge relied on plaintiff’s alleged failure to

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respond to requests for admissions, the court declines to adopt that portion of the findings and

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recommendations. See ECF 108 at 30:9-16.

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The magistrate judge also relied on evidence showing that a nurse practitioner,

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not defendant Sahota, discontinued plaintiff’s nutritional supplement in July 2009 because he no

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longer met the criteria for continuing the supplement. ECF 108 at 30:17-20; ECF No. 76-6 at 7

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¶¶ 31-32 & 76-7 at 2-3. Plaintiff has provided nothing undercutting this evidence; the

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recommendation based on it will be adopted.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed March 20, 2012 are adopted in part

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and rejected in one respect only; and

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2. Defendants’ May 6, 2011 motion for summary judgment is granted, except as

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to the claim that defendant Nangalama did not timely prescribe antiviral medications and the

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claim that defendant Sahota approved non-formulary medications for plaintiff without examining

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him.

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DATED: July 5, 2012.

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UNITED STATES DISTRICT JUDGE

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