Nicholson v. Medina et al

Filing 64

ORDER signed by Judge Kimberly J. Mueller on March 30, 2013. Granting in part and denying in part 54 Motion for Summary Judgment; adopting in part 58 FINDINGS AND RECOMMENDATIONS; Clerk of the Court is directed to enter judgment for defendant Shaw; refer to ADR and Pro Bono Coordinator for identification of counsel to represent plaintiff for the purposes of trial; and case is set for status and trial setting for May 30, 2013 at 2:30. (Andrews, P)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELDRED NICHOLSON,
Plaintiff,

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vs.

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No. 2:10-cv-1425 KJM EFB P

D. MEDINA, et al.,
Defendants.

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ORDER
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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.
On January 22, 2013, 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 fourteen days from the date the

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findings and recommendations were served. Plaintiff has filed objections to the findings and

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recommendations.
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 discussed below.

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The magistrate judge found that on June 25, 2009, plaintiff did not inform Shaw

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and Medina that he could not take ibuprofen because of his ulcer, noting that plaintiff did not say

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anything about his ulcer until August 5, 2009. ECF No. 58 at 3 n.6. In his verified objections,

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however, plaintiff says he in fact told Medina and Shaw about his ulcer on June 25, 2009. ECF

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No. 62 at 4 ¶ 14. This allegation also is contained in plaintiff’s verified complaint, which the

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court must consider in opposition to summary judgment. ECF No. 1 at 11 ¶ 16; Jones v. Blanas,

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393 F.3d 918, 923 (9th Cir. 2004). Plaintiff’s objections maintain that his case against Medina

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alone should proceed. ECF 62 at 2-3. Accordingly, the facts are in dispute on the question

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whether Medina purposefully chose ibuprofen in conscious disregard of plaintiff’s health. It

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does appear, as the magistrate judge observes, that plaintiff had been taking aspirin, which also

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has the potential of irritating or causing ulcers, but there is no evidence in the record addressing

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the effects of combining two such medications for someone with ulcers. As the administration

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of contraindicated medication may be evidence of deliberate indifference, summary judgment as

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to Medina is denied on this issue.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 22, 2013, are adopted in part;

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2. Defendants’ motion for summary judgment (Dckt. No. 54) is granted on all

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claims alleged against Shaw in light of plaintiff’s concession, and on the claim

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that defendant Medina unreasonably delayed in treating plaintiff’s wrist;

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3. Defendants’ motion for summary judgment is denied as to the claim that

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Medina prescribed ibuprofen for plaintiff;

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4. The Clerk of the Court is directed to enter judgment for defendant Shaw;

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5. Because plaintiff’s remaining claim warrants appointment of counsel for the

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trial that will be set, the court refers this case to the court’s ADR and Pro

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Bono Coordinator, Sujean Park, for identification of counsel to represent

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plaintiff for the purposes of trial; and

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6. The case is set for status and trial setting before the undersigned on May 30,
2013 at 2:30 p.m.
DATED: March 30, 2013.

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UNITED STATES DISTRICT JUDGE

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