Opinion
CASE NO. 2:06-CV-511-WKW (WO).
March 18, 2008
ORDER
On February 21, 2008, the Magistrate Judge filed a Recommendation (Doc. # 128) that defendants' motions for summary judgment be granted and the case be dismissed. The plaintiff has filed an objection claiming that he did exhaust administrative remedies with respect to his retaliation claim.
Assuming the verity of the plaintiff's exhibits, they show that while he complained to medical personnel about not having his back brace, not being issued profiles for a bottom bunk, and not being sent to a free world medical specialist, those complaints were premised on medical need. He did not allege that the failure to provide him the medical device or services was retaliatory. In his affidavit he characterizes his administrative filings as complaints about retaliation, but his characterization of the documents is not sufficient to create a genuine issue of material fact when the documents themselves are mere opinion and not fact and do not support his characterization.
After an independent and de novo review of the record, it is the ORDER, JUDGMENT and DECREE of the Court that:
1. Plaintiff's Objection (Doc. # 129) is OVERRULED;
2. The Recommendation of the Magistrate Judge (Doc. # 128) is ADOPTED;
3. The defendants' Motions for Summary Judgment (Doc. # 28, 86) are GRANTED;
4. Plaintiff's deliberate indifference claims are DISMISSED with prejudice;
5. Plaintiff's remaining claims are DISMISSED without prejudice.
An appropriate judgment will be entered