Opinion
3:11-cv-00083-ECR-VPC
08-31-2012
JOEY GARCIA, Plaintiff, v. TOM PRINCE, et al., Defendant.
Order
On April 11, 2012, the Magistrate Judge filed a Report and Recommendation (#22), recommending that the Court grant Defendants' motion for summary judgment (#15). On April 25, 2012, Plaintiff filed an objection (#23), and on May 2, 2012, Defendants filed a reply (##24, 25).
Plaintiff's remaining claims after screening include Eighth Amendment medical indifference claims against Defendants Martin and Jones. No other defendants or claims remain. On October 4, 2011, Defendants Martin and Jones filed a motion for summary judgment (#15). On October 5, 2011, the Court filed an Order (#19) providing that Plaintiff shall have twenty-one (21) days to oppose the motion for summary judgment (#15). Plaintiff failed to file an opposition, and on November 8, 2011, the Magistrate Judge sua sponte granted Plaintiff an extension of time until November 23, 2011 to file an opposition to the motion for summary judgment (#15). Plaintiff did not file an opposition, and on April 11, 2012, after a thorough review of the record, the Magistrate Judge recommended (#22) that Defendants' motion for summary judgment (#15) be granted.
In his objections (#23), Plaintiff essentially submits an untimely opposition to the motion for summary judgment (#15). Plaintiff argues that Defendants' evidence in support of the motion for summary judgment (#15) was falsified. When objections are filed, the court is required to make a de novo review of those portions of the report and recommendation to which objections are made. 28 U.S.C. § 636(b)(1). While we review the record de novo on those issues Plaintiff raises in his objections (#23), we note that Plaintiff failed to file an opposition to the motion for summary judgment (#15), and therefore never provided any contrary evidence.
Plaintiff claims in his objections (#23) that the medical records provided by Defendants contain false information regarding the William Bee Ririe Hospital and Plaintiff's refusal of intravenous fluids. Plaintiff's claim, contained only in his objections (#23) and entirely lacking in any supporting evidence, in insufficient to create a genuine issue of material fact regarding the medical records.
Plaintiff's second objection is that Defendants' course of treatment was unacceptable because Defendants lied about his being admitted to the hospital and refusing IV. Again, Plaintiff provides no supporting evidence that Defendants lied, and in fact, in his motion, states that he did in fact refuse the IV when offered.
Finally, Plaintiff claims that a received on date stamped on a medical kite demonstrates that Nurse Jones falsified his medical records. Defendants provided the court with an authenticated copy of the medical kite allegedly falsified. (Defendants' Exhibits in Support of Mot. Summ. J. Ex. H at 5 (#17-3) (sealed).) Defendant Jones promptly responded to the kites and ordered tests and an examination for Plaintiff. (Defendants' Exhibits, Ex. L (#17-5) (sealed).) The evidence does not support Plaintiff's bare allegation that the kite was falsified or back-dated. (Ex. H (#17-3) (sealed).)
After our own review of the record de novo, we agree with the Magistrate Judge that Plaintiff there is no evidence that Defendants Martin or Jones exercised deliberate indifference towards Plaintiff's medical needs by delaying or withholding necessary medical treatment.
IT IS, THEREFORE, HEREBY ORDERED that the Report & Recommendation (#22) is APPROVED AND ADOPTED. Defendants' motion for summary judgment (#15) as to Plaintiff's Eighth Amendment claims against Defendants Martin and Jones is GRANTED . No other claims remain.
The Clerk shall enter judgment accordingly.
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UNITED STATES DISTRICT JUDGE