Lowe v. McGuinness

Full title: DARRELL LOWE, Plaintiff, v. WILLIAM J. MCGUINNESS, et al., Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 29, 2011

Case No. 1:09-cv-00712 AWI JLT (PC) (E.D. Cal. Sep. 29, 2011)

Opinion

Case No. 1:09-cv-00712 AWI JLT (PC)

09-29-2011

DARRELL LOWE, Plaintiff, v. WILLIAM J. MCGUINNESS, et al., Defendants.

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

(Documents #28 & #65)

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 25, 2011, the Magistrate Judge issued findings and recommendations recommending that Plaintiff's motion for summary judgment be denied. (Doc. 65.) The Magistrate Judge explained that Plaintiff failed to meet his burden on summary judgment of conclusively proving that Defendant McGuinness acted with deliberate indifference to Plaintiff's need for back treatment. (Id. at 5-7.) In regard to Defendant Call, the Magistrate Judge explained that there was sufficient evidence to create a genuine issue of material fact as to whether Defendant Call ordered other nurses to disregard Plaintiff's need for medical attention. (Id.. at 7-8.) Lastly, the Magistrate Judge explained that Plaintiff's motion for summary judgment against Defendant Rahimifar was procedurally premature because Defendant Rahimifar has yet to file an answer in this case. (Id.. at 8.)

The findings and recommendations contained notice that the parties could file objections to the findings and recommendations within fourteen days of being served. As of the date of this order, the parties have not filed objections to the findings and recommendations.¹

1 Plaintiff filed a motion for an extension of time to file objections. However, the Court denied Plaintiff's request on September 16, 2011. (Doc. 68.)

The Court has conducted a de novo review of this case in accordance with 28 U.S.C. § 636(b)(1)(C). Having carefully reviewed the entire file in this case, the Court finds the findings and recommendations to be supported by the record and proper analysis.

Accordingly, it is HEREBY ORDERED that:

1. The findings and recommendations issued August 25, 2011 are ADOPTED in full;
2. Plaintiff's February 3, 2011 motion for summary judgment (Doc. 28) is DENIED as follows:

a. Plaintiff's motion for summary judgment is DENIED with respect to Defendants McGuinnes and Call; and
b. Plaintiff's motion for summary judgment is DENIED WITHOUT PREJUDICE with respect to Defendant Rahimifar.

IT IS SO ORDERED.

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CHIEF UNITED STATES DISTRICT JUDGE