Opinion
1:19-cv-01504-DAD-JLT (PC)
12-03-2021
ANTHONY DAVIS, Plaintiff, v. N. AKABIKE, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO. 33)
Plaintiff Anthony Davis is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 27, 2021, the assigned magistrate judge issued findings and recommendations, recommending that the court deny defendant's motion for summary judgment. (Doc. No. 33.) In the pending findings and recommendations, the magistrate judge found that, “[i]n a light most favorable to the Plaintiff, the alleged facts plausibly demonstrate that Defendant knowingly violated Plaintiff's Eighth Amendment right to medical treatment, including pain management.” (Id. at 13.) The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen (14) days from the date of service. (Id.)
Defendant filed objections to the pending findings and recommendations on November 5, 2021. (Doc. No. 34.) Therein, defendant argues that the only evidence plaintiff provided to the court was that plaintiff did not agree with Dr. Ndu's recommendation of an alternative medication for treatment. (Id. at 3.) Defendant further argues that plaintiff's decision not to take the medication recommended by defendant is not sufficient to create a triable issue of fact as to plaintiff's deliberate indifference claim. (Id.) However, these arguments advanced by defendant in the objections were fully and correctly addressed in the pending findings and recommendations.
Defendant's last name has changed from Akabike to Ndu. (Doc. No. 28-5 at ¶ 6.) The court will accordingly refer to defendant as either “defendant” or “Dr. Ndu.”
As noted by the magistrate judge, the decision to deny summary judgment in this case does not rest on plaintiff's differing opinion with respect to the proper medical treatment. (Doc. No. 33 at 10.) Rather, the record before the court on summary judgment raises a genuine dispute of material fact as to whether plaintiff had a right to further treatment upon refusal of the prescribed pain medication. (Id. at 11-12.) In this regard, the findings and recommendations state, “[p]laintiff has a right to medication under the Eighth Amendment” and “[a]fter [p]laintiff declined to take duloxetine or nortriptyline, it appears that [d]efendant took no further effort to treat [p]laintiff . . . with a milder pain medication, a referral to an orthopedic specialist, or [to] submit a nonformulary request for the DME.” (Id. at 12.) Moreover, the findings and recommendations concluded that “[w]hether [p]laintiff's condition was sufficiently serious such that [d]efendant's failure to treat it would result in the ‘unnecessary and wanton infliction of pain,' must be considered.” (Id.) Thus, the conclusion reached by the magistrate judge does not rest on a disagreement between the parties as to plaintiff's proper treatment; instead, the conclusion is based on whether plaintiff received treatment at all, even if he did refuse the initial stronger painkillers offered to him by defendant. (Id.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly,
1. The findings and recommendations issued on October 27, 2021 (Doc. No. 33) are adopted in full;
2. Defendant's motion for summary judgment (Doc. No. 28) is denied; and
3. The matter is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.