Opinion
CASE NO. 4:05-cv-00455-MP-AK.
March 7, 2008
ORDER
This matter is before the Court on Doc. 74, Report and Recommendation of the Magistrate Judge, which recommends that Defendants' Motion for Summary Judgment, Doc. 45, be granted, and that Plaintiff's amended complaint be dismissed for failure to state a claim. The Magistrate also recommends that any claims against Dr. Allen Winston be dismissed for failure to serve him within 120 days of the filing of the complaint. The Magistrate Judge filed the Report and Recommendation on Thursday, February 7, 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 were made.
Plaintiff filed the instant cause of action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs. Plaintiff's pain medication was discontinued after a nurse allegedly saw Plaintiff giving it to another inmate. After filing a grievance, Plaintiff was allowed to continue taking his medication. The Magistrate concludes that Plaintiff has failed to state a claim of deliberate indifference on a number of grounds, and the Court agrees. In the approximately one month that Plaintiff's Flexeril was discontinued, he was allowed to take another, unidentified pain medication. Furthermore, Defendant Leon had no authority to order that Plaintiff's medication be discontinued. This authority was vested in Dr. Allen Winston, who actually ordered the medication be stopped. Because Dr. Winston was never served in this case, any claims against him must be dismissed for failure to effect service within 120 days of filing the complaint, which was on December 12, 2005.
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. 45, is GRANTED, and Plaintiff's amended complaint, Doc. 9, 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).
3. Any claims against Dr. Allen Winston are dismissed for failure to serve him within 120 days of the filing of the complaint, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.
DONE AND ORDERED