Thomas #317932 v. Frontera

Filing 64

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 60 , and Granting Defendant's motion for summary judgment 54 . Judgment is entered in favor of Defendant and this case is closed ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

J E R A L D THOMAS, P l a in tif f , F ile No. 2:07-cv-13 v. H O N . ROBERT HOLMES BELL F E R N A N D O FRONTERA, D e f e n d a n t. / M E M O R A N D U M OPINION AND ORDER A D O P T I N G THE REPORT AND RECOMMENDATION T h is matter is before the Court on Plaintiff Jerald Thomas's complaint filed pursuant to 42 U.S.C. § 1983. Plaintiff, a prisoner, alleges that Defendant, a medical doctor, was d e lib e ra tely indifferent to Plaintiff's medical needs, in violation of the Eighth Amendment. D e f en d a n t filed a motion for summary judgment. (Dkt. No. 54.) On September 23, 2008, U n ite d States Magistrate Judge Timothy P. Greeley issued a Report and Recommendation (" R & R " ), recommending that the Court grant Defendant's motion for summary judgment. O n October 10, 2008, Plaintiff filed objections to the R&R. (Dkt. No. 62.) T h is Court is required to make a de novo determination of those portions of an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The C o u rt may accept, reject, or modify any or all of the Magistrate Judge's findings or re c o m m e n d a tio n s . Id.

A f te r review of the R&R and Plaintiff's objections thereto, the Court concurs with the c o n c lu s io n s of the R&R. As stated in his objections, Plaintiff's assertion is that Defendant did not order the " p r o p e r test in a timely fashion" to confirm diagnosis of autoimmune hepatitis. (Dkt. No. 6 2 , Pl.'s Objs. to R&R 2.) This claim is without merit. Plaintiff contends that a doctor at the h o sp ital emergency room recommended a liver biopsy in early December 2005, but that this b io p s y was not performed until February 27, 2006. Plaintiff contends that he was harmed b y this delay in performing the diagnostic test because it allowed his condition to go u n t r e a te d . (Pl.'s Objs. to R&R 4.) However, Plaintiff mischaracterizes the evidence. P la in t if f acknowledged in his deposition that Defendant was already treating him for this c o n d itio n with medication as of January 2006. (Dkt. No. 54, Defs.' Ex. B, Frontera Dep. 171 8 .) Moreover, Plaintiff has failed to show, "with verifying medical evidence in the re c o rd [ ,]" "the detrimental effect of [any] delay in medical treatment." Napier v. Madison C o u n ty , 238 F.3d 739, 742 (6th Cir. 2001). Thus, the Court concurs with the R&R that

P la in tif f has not shown that any delay in receiving this particular diagnostic test, when c o n sid e re d together with the unchallenged evidence of medical care and attention that P la in tif f received before, during, and after the time that this diagnostic test was performed, c o n stitu te d an Eighth Amendment violation. H a v in g conducted the required review of the R&R and Plaintiff's objections thereto, th e Court concurs with the conclusions of the R&R.

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A c c o r d i n g l y, I T IS HEREBY ORDERED that the Report and Recommendation (Dkt. No. 60) is A P P R O V E D and ADOPTED as the opinion of this Court, and Defendant Fernando F r o n te r a 's motion for summary judgment (Dkt. No. 54) is GRANTED. I T IS FURTHER ORDERED that Plaintiff's objections to the Report and R e c o m m e n d a tio n (Dkt. No. 62) are DENIED. I T IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendant F e r n a n d o Frontera on Plaintiff's claims. T h is case is closed.

Dated: April 2, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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