Timms v. Weiss et al

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION re 27 Report and Recommendations, granting 21 Defendants' Motion for Summary Judgment. The Court DISMISSES this case from the Court's docket and CERTIFIES that an appeal of this Court's Order would not be taken in good faith. Signed by Judge S Arthur Spiegel on 12/10/2009. (km1) (Additional attachment(s) added on 12/10/2009: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION BRIAN TIMMS, Plaintiff, v. AMY WEISS, H.C.A., et al., Defendants. : : : : : : : : : : NO. 1:08-CV-00011

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge's September 22, 2009 Report and Recommendation (doc. 27), to which Plaintiff filed no objection. For the reasons indicated herein,

the Court ADOPTS the Magistrate Judge's Report and Recommendation, and GRANTS Defendants' Motion for Summary Judgment. I. Background The Magistrate Judge offered a comprehensive review of the facts in this matter, which the Court incorporates by reference (doc. 27). In summary, Plaintiff, an inmate currently incarcerated at Chillicothe Correctional Institute, alleges that, while at Lebanon Correctional Institution ("LeCI"), he was taken to

Middletown Regional Hospital ("MRH") for treatment of abdominal pain (Id.). stones on Medical staff at MRH diagnosed Plaintiff with kidney September 20, 2007, and administered "stronger"

medication for pain than what he ultimately received upon his return to LeCI (Id.).

Plaintiff claims that Defendants gave him inadequate continuing treatment for his medical condition at LeCI based on the denial of continued "stronger" pain medication after his return there (Id.). However, Plaintiff is unable to remember what pain

medication Defendants gave him upon his return to LeCI (Id.). Defendants argue they administered continuing medical treatment to Plaintiff including pain medication after his return from MRH (Id.). Indeed, the record shows Plaintiff received

Tylenol 3 and Ibuprofen, and also shows Plaintiff refused pain medication (Id.). Plaintiff filed his Complaint on January 14, 2008,

alleging deliberate indifference to his medical needs and brought this action pursuant to 42 U.S.C. § 1983 against Defendants Amy Weiss and Dr. James McWeeney (doc. 4). Defendants filed their

Motion for Summary Judgment on December 3, 2008, arguing that Plaintiff's claims lack merit because (1) Plaintiff failed to allege the personal involvement required to hold defendants liable; (2) Plaintiff cannot demonstrate what medication, if any, he was denied (doc. 21). II. The Magistrate Judge's Report and Recommendation (doc. 27) The Magistrate Judge found well-taken Defendants'

argument that Plaintiff provided no evidence in support of his claim that Defendants denied him pain medication (doc. 27). Citing Westlake v. Lucas, 537 F.2d 857, 860-61 n.5 (6th Cir. 1976), the 2

Magistrate Judge noted that when medical assistance has been provided, such treatment must be so "woefully inadequate as to amount to no treatment at all" in order to give rise to a cause of action under § 1983. The Magistrate Judge concluded that Plaintiff received condition. regular and consistent medical treatment for his

Furthermore, the Magistrate Judge noted that the

medical records provided by the Defendants show they administered Ibuprofen and Tylenol #3 for the management of his pain (doc. 27). The Magistrate Judge concluded that, while Plaintiff was dissatisfied with the medical treatment he received, this is insufficient for purposes of stating a claim under the Eighth Amendment (Id. citing Kirkham v. Wilkinson Case No. 03-4045, 2004 WL 1380083 at *2 (6th Cir. 2004) (citing Estelle v. Gamble, 429 U.S. 97, 104-105 (1976))). Additionally, the Magistrate Judge noted

Defendants' argument that Plaintiff has proffered no evidence demonstrating personal involvement in the alleged denial of

medication on the part of either Defendant. reasons, the Magistrate Judge

For all of the above the Court grant

recommended

Defendants' Motion for Summary Judgment (doc. 21), and dismiss Plaintiff's Complaint (doc. 4). III. Analysis Having reviewed this matter de novo, pursuant to Title 28 U.S.C. § 636, the Court finds no reason to reject the conclusion of the Magistrate Judge's well-reasoned 3 opinion. Plaintiff's

dissatisfaction with the specific course of his treatment is not sufficient in order to demonstrate that he received inadequate medical care. Moreover, the Court has reviewed the evidence and

agrees with the Magistrate Judge that Plaintiff has not proffered evidence that demonstrates that prison medical staff were

deliberately indifferent to his medical needs.

Plaintiff received

regular medical care, was taken to on off-site hospital for treatment, and received medication for his condition upon his return to LeCI. The Court finds no genuine issue as to any

material fact and concludes that Defendant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The Court notes that Plaintiff filed no objection to the Report and Recommendation, even after the Court granted leave for an extension of time to do so (doc. 30). Plaintiff received notice of his extension of time (doc. 31). objection has now passed (doc. 30). Proper notice was provided to the Parties under Title 28 U.S.C. § 636(b)(1)(c), including the notice that they would waive further appeal if they failed to file an objection to the The deadline for any

Magistrate Judge's Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). Plaintiff filed no objection to the Magistrate Judge's Report and Recommendation. Accordingly, the Court hereby ADOPTS and AFFIRMS the 4

Magistrate Judge's Report and Recommendation (doc. 27), GRANTS Defendants' Motion for Summary Judgment (doc. 21), DISMISSES this case from the Court's docket, and CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of this Court's Order would not be taken in good faith. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). SO ORDERED. Dated: December 10, 2009 /s/ S. Arthur Spiegel S. Arthur Spiegel United States Senior District Judge See McGore v.

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