Summary
recommending dismissal as frivolous plaintiff's claim that doctors identified his serious medical problem as "light" instead of "serious" and by giving him antibiotics to treat a bone infection rather than surgery, because those allegations essentially constitute negligence or medical malpractice rather than deliberate indifference
Summary of this case from Peacock v. Cabreo-MunizOpinion
CASE NO: 1:10-cv-109 (WLS)
02-24-2012
KELVIN CAIN, Plaintiff, v. JOSEPH BADEN, et al. Defendants.
ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge Thomas Q. Langstaff, filed January 12, 2012. (Doc. 29). It is recommended that Defendant's first Motion to Dismiss (Doc. 21) on Plaintiff's 42 U.S.C. § 1983 claims of Eighth Amendment deliberate indifference to Plaintiff's medical needs (see Doc. 1) be GRANTED. (Doc. 29 at 10). Judge Langstaff also recommends that Defendants' second Motion to Dismiss for Lack of Prosecution be DENIED-as-moot.
The Report and Recommendation provided the Parties with fourteen (14) days from the date of its service to file written objections to the recommendations therein. (Id.). The period for filing objections expired on Monday, January 30, 2012; no objections have been filed to date. (See Docket).
The Parties were given an additional three days because service was made by mail. See Fed. R. Civ. P. 6(d) (adding three days to specified period within which a party may act if service is made under Rule 5(b)(2)(C) by mailing process to a party's last known address).
Upon full review and consideration upon the record, the Court finds that said Report and Recommendation (Doc. 29) should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein. reached herein. Accordingly, Defendant's Motion to Dismiss (Doc. 21) Plaintiff's 42 U.S.C. § 1983 claims of Eighth Amendment deliberate indifference to Plaintiff's medical needs (see Doc. 1) is GRANTED. (Doc. 29 at 10). It is further ordered that Defendants' second Motion to Dismiss for Lack of Prosecution is deemed as moot and is DENIED.
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THE HONORABLE W. LOUIS SANDS ,
UNITED STATES DISTRICT COURT