Coston v. Nangalama et al

Filing 73

ORDER signed by Chief Judge Morrison C. England, Jr on 3/29/2013 ORDERING the 67 FINDINGS AND RECOMMENDATIONS are ADOPTED IN PART and REJECTED IN PART; The findings and recommendations as to Defendants Nangalama and Hale are ADOPTED IN FULL, and [56 ] Motion for Summary Judgment is DENIED as to these two defendants; The findings and recommendations as to Defendants Nangalama and Hale are ADOPTED IN FULL, and 56 Motion for Summary Judgment as to these two Defendants is DENIED; 56 Motion for Summary Judgment is GRANTED as to Defendants Berchtold and Brimhall; The Court declines to consider the supplemental declarations by Defendant Nangalama and Kelley Yokley offered in support of Defendants 71 Objections to the Magistrate Judges Findings and Recommendations; Defendants request to submit a new motion for summary judgment is DENIED. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANNY MURPHY COSTON,
Plaintiff,

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v.
ANDREW NANGALAMA, et al.,
Defendants.

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ORDER
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No. 2:10-cv-02009-MCE-EFB P

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

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

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On February 28, 2013, the Magistrate Judge filed findings and recommendations herein

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(ECF No. 67) which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen days. After an

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extension of time, Defendants have filed objections to the findings and recommendations. (ECF

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No. 71.)

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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 entire file,

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the Court HEREBY ORDERS that:
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The Findings and Recommendations (ECF No. 67) filed February 28, 2013, are

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ADOPTED IN PART AND REJECTED IN PART.

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a.

The findings and recommendations as to Defendants Nangalama and Hale

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are ADOPTED IN FULL, and the Motion for Summary Judgment (ECF

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No. 56) as to these two Defendants is DENIED.

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b.

The findings and recommendations as to Defendants Duc and Bal are

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REJECTED, and the Motion for Summary Judgment (ECF No 56) is

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GRANTED as to these Defendants. The Court finds that these defendants

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are entitled to qualified immunity. While the Court agrees with the law

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regarding review of an administrative appeal by a medically trained

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reviewer as set forth in the findings and recommendations (ECF No. 67 at

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10-11) the Court disagrees with the legal conclusion reached by the

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Magistrate. That is, although there is an “emerging consensus that a

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medically-trained official who reviews and denies an appeal is liable

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under the Eighth Amendment when a plaintiff can show that the official

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knew, at least in part, from reading the appeal that the plaintiff had a

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serious medical issue and nonetheless did not offer treatment,” this

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consensus was not clearly established in 2008, the time of the incident at

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issue. See Pogue v. Igbinosa, 2012 WL 603230, at *10 (E.D. Cal. Feb. 23,

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2012). Because a reasonable officer in the position of Defendants Duc

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and Bal at the time of the incident at issue would not have had fair

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warning that his conduct was unlawful, see id., Defendants Duc and Bal

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are therefore entitled to qualified immunity.
c.

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GRANTED as to Defendants Berchtold and Brimhall.

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The July 20, 2012, Motion for Summary Judgment (ECF No. 56) is

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The Court declines to consider the supplemental declarations by Defendant
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Nangalama and Kelley Yokley offered in support of Defendants’ Objections to

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the Magistrate Judge’s Findings and Recommendations (ECF No. 71); and

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Defendants’ request to submit a new motion for summary judgment is DENIED.

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(ECF NO. 71.)

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IT IS SO ORDERED.

6 Date: March 29, 2013
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__________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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