Opinion
1:19-cv-00703-DAD-HBK (PC)
12-07-2021
NICHOLAS SCOTT STONE, Plaintiff, v. T. ROBINSON, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO. 35)
Plaintiff Nicholas Scott Stone 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 September 24, 2021, the assigned magistrate judge issued findings and recommendations, recommending that defendants' motion for summary judgment (Doc. No. 29) be granted in part and denied in part. (Doc. No. 35.) Specifically, the magistrate judge recommended that plaintiff's failure to protect claims against defendants T. Robinson, Y. Yang, and M. Ortega be dismissed; plaintiff's medical deliberate indifference claims against defendants Catherine Nacar, Corazon Flores, and Brett Marean be dismissed; that Catherine Nacar and Corazon Flores be dismissed as defendants; and that all other claims and defendants proceed. (Id. at 21.)
The recommendation that summary judgment be granted in favor of defendant Marean due to plaintiff's failure to exhaust his administrative remedies is limited solely to the aspect of plaintiff's deliberate indifference claim that is based on the allegation that Marean failed to provide plaintiff his prescribed medications. (Doc. No. 35 at 21.) Defendant Marean also moved for summary judgment on plaintiff's deliberate indifference claim stemming from his alleged failure to provide medical care after plaintiff fainted (Doc. No. 29-2 at 23), but the court will adopt the recommendation that this aspect of defendant Marean's motion be denied.
The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within fourteen (14) days. (Id.) On October 7, 2021, defendants filed objections to the pending findings and recommendations. (Doc. No. 36.) Therein, defendants argue that “the undisputed facts in the record show [p]laintiff was given multiple opportunities to pursue exhaustion but either failed to follow directions or timely complete the process.” (Id. at 8.) The court has reviewed defendants' arguments and concludes that the same arguments were thoroughly addressed by the magistrate judge in the pending findings and recommendations in which it was concluded that plaintiff “lacked an ‘available' administrative remedy to pursue his appeals through the third level.” (Doc. No. 35 at 14.)
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 September 24, 2021 (Doc. No. 35) are adopted in full;
2. Defendants' motion for summary judgment (Doc. No. 29) is granted in part and denied in part as follows:
a. The failure to protect claims against defendants T. Robinson, Y. Yang, and M. Ortega are dismissed;
b. The medical deliberate indifference claims brought against defendants Catherine Nacar and Corazon Flores are dismissed;
c. The medical deliberate indifference claim brought against defendant Brett Marean is dismissed solely with respect to that aspect of the claim in which it was alleged that defendant Marean failed to provide plaintiff his prescribed medication;
d. Defendants Nacar and Flores are dismissed as defendants from this action;
e. This action proceeds on all other claims; and
3. The matter is referred back to the assigned magistrate judge for further proceedings.
IT IS SO ORDERED.