Opinion
CASE NO. 1:06-cv-00055-MP-AK.
February 1, 2008
ORDER
This matter is before the Court on Doc. 28, Report and Recommendation of the Magistrate Judge, which recommends that Plaintiff's case be dismissed for failure to state a claim. The Magistrate Judge filed the Report and Recommendation on Thursday, January 3, 2008. The parties have been furnished a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must make a de novo review of those portions to which an objection has been made. In this instance, however, no objections have been filed.
Plaintiff filed the instant cause of action pursuant to 42 U.S.C. § 1983, alleging that Defendant was deliberately indifferent to his serious medical needs. Specifically, Plaintiff seeks $50,000.00 in damages and injunctive relief against the Defendant, Dr. Swartz, for refusing to treat him for insect bites and for failing to cure the insect infestation in his cell. Defendant has filed a special report, Doc. 19, which was construed as a motion for summary judgment, Doc. 21. To date Plaintiff has filed no response to the motion for summary judgment.
Because Plaintiff has come forward with no evidentiary material to support his claims that Defendant ignored or was otherwise indifferent to his medical issues, the Magistrate recommends that Defendant's motion for summary judgment should be granted. After reviewing the record, the Court agrees with the Magistrate. The medical records show that Plaintiff was seen numerous times by the Defendant, and was prescribed various creams for his skin condition. Furthermore, Defendant ordered that Plaintiff's bunk be sprayed to treat any insect infestation, and directed for the linens to be changed. Based on this, Plaintiff cannot show that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation, or that Defendant had the required subjective intent to punish the Plaintiff. Therefore, the Court agrees with the Magistrate that Defendant's motion for summary judgment should be granted, and this case dismissed.
Therefore, having considered the Report and Recommendation, and the lack of objections thereto, I have determined that it should be adopted. Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.
2. Defendant's Motion for Summary Judgment, Doc. 21, is GRANTED, and Plaintiff's complaint, Doc. 8, is DISMISSED. The Clerk is directed to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
DONE AND ORDERED.