Thomas v. Antipov et al

Filing 136

ORDER signed by Chief Judge Morrison C. England, Jr. on 04/15/15 ORDERING that the 132 order entered on 03/20/15 adopting in full the findings and recommendations, granting in part defendants motion for summary judgment and denying plaintiffs counter-motion for summary judgment is CONFIRMED as herein modified. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMAAL THOMAS,

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No. 2:11-cv-1138-MCE-EFB P

Plaintiff,

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v.

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ANTIPOV, et al.,

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ORDER

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.
On February 12, 2015, the magistrate judge filed findings and recommendations herein

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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. Neither party timely

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filed objections to the findings and recommendations. On March 20, 2015, this Court adopted the

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findings and recommendations and granted in part defendants’ motion for summary judgment and

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denied plaintiff’s counter-motion for summary judgment. That same day, plaintiff’s objections to

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the findings and recommendation were filed on the court’s docket.

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In an abundance of caution, the Court will vacate the March 20, 2015 order adopting the

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findings and recommendations and reconsider them in light of plaintiff’s objections. See Fed. R.

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Civ. P. 59(e) and 60(b).

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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, including plaintiff’s objections to the findings

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and recommendations of the magistrate judge. Having carefully reviewed the entire file, the court

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

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light of plaintiff’s objections, however, the findings and recommendations will be adopted as

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modified herein.

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Plaintiff objects to the sentence in the findings and recommendations that reads “There is

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no evidence to show that Ma was aware of any allergies to either medication yet prescribed it

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anyway.” See ECF No. 131 at 17. Plaintiff’s objection is based on medical records that

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document his claimed allergy to penicillin. See ECF No. 133 (referring to ECF No. 122, Exs. E

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& R). The documentation of a penicillin allergy, however, does not undermine the analysis in the

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findings and recommendations, which explain that defendant Ma did not see any indication in

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plaintiff’s medical chart that plaintiff was genuinely allergic to any medication. See ECF No.

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131 at 17. For the sake of clarity, the sentence to which plaintiff objects is modified to read

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“There is no evidence to show that Ma was aware of any legitimate allergies to either medication

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yet prescribed it anyway.” See ECF No. 131 at 17.

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Accordingly, IT IS HEREBY ORDERED that that the order entered on March 20, 2015

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(ECF No. 132) adopting in full the findings and recommendations, granting in part defendants’

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motion for summary judgment and denying plaintiff’s counter-motion for summary judgment is

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CONFIRMED as herein modified.

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Dated: April 15, 2015

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