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Burns v. Decarr

March 2, 2010

NELSON C. BURNS, PLAINTIFF,
v.
DECARR, CROOK, VISTA DETENTION FACILITY, VISTA SHERIFF'S DEPARTMENT, DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. Nos. 32 & 42)

Presently before the Court is Defendants' motion for summary judgment. (Doc. No. 32.) Plaintiff has opposed this motion and Defendants have filed a reply. (Doc. Nos. 33 & 34.) Magistrate Judge McCurine issued a Report and Recommendation (R&R) to this Court advising that Defendants' motion should be granted in part and denied in part. (Doc. No. 42.) Both Plaintiff and Defendants have objected to this conclusion and Defendants have replied to Plaintiff's objections. (Doc. Nos. 43, 45, & 46.) Having considered all of the parties filings, the Court ADOPTS Magistrate Judge McCurine's R&R and GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment.*fn1

FACTUAL BACKGROUND

The allegations in this matter were correctly set forth in the R&R and not objected to by either party. (R&R at 2.) They are again noted here for the sake of clarity.

Plaintiff was being held in custody at the Vista Detention Facility, when he sought medical attention for lice or scapies. (Compl. at 3.) However, when the time arrived for Plaintiff to be taken to the medical facilities, Defendant Yapette Crook, who was to escort Plaintiff, did not arrive. (Id.) Plaintiff then contacted Defendant Crook via intercom. Defendant Crook allegedly told Plaintiff that Plaintiff had been treated several days before, and that Defendant Crook was "not going to risk taking any bugs home" to his family. (Id.)

Shortly afterward, Plaintiff began to complain of chest pain but Defendant Crook again refused to bring Plaintiff for medical attention, allegedly telling Plaintiff "that [he] better quit calling him." (Id.) Next, Plaintiff's cell mate, Jeff Atkinson, called for medical help on Plaintiff's behalf but Defendant Crook "stated that plaintiff was faking it." (Id.) When Mr. Atkinson persisted, Defendant Crook said that he was on his way and that he was "going to fuck [Plaintiff] up." (Id.)

When Defendant Crook arrived, "[b]oth defendants proceeded to drag the [P]laintiff down the module stairs roughfully (sic) so." (Id. at 4.) According to Plaintiff, he was prevented from talking to the nurse by Defendants' threats resulting in him not receiving the necessary medical care. (Id.)

PROCEDURAL BACKGROUND

Plaintiff filed the complaint in this case on October 12, 2007. (Doc. No. 1.) On March 7, 2008, Defendants filed a motion to dismiss. (Doc. No. 12.) On December 3, 2008, the Court, adopting Magistrate Judge McCurine's R&R, denied the motion. (Doc. No. 19.) Defendants filed their answer on December 8, 2008. (Doc. No. 20.) The present motion for summary judgment was filed on July 16, 2009. (Doc. No. 32.) Magistrate Judge McCurine filed his R&R on January 29, 2010. (Doc. No. 42.)

LEGAL STANDARD

I. Review of the Report and Recommendation

Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge 's report and recommendation. "The district court must make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980). However, the Court has no obligation to review a legal conclusions to which neither party objects. Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

II. Motion for Summary Judgment

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) the moving party demonstrates the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323. The movant can carry his burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the ...


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