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Quiroz v. California Dep't of Corrections and Rehabilitation

September 16, 2010

CARLOS QUIROZ, PLAINTIFF,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART (DOCS. 26, 35, 37, 40)

ORDER DENYING PLAINTIFF'S MOTIONS TO STRIKE DEFENDANTS' et al., AMENDED DECLARATIONS (DOCS. 36, 39)

Plaintiff Carlos Quiroz ("Plaintiff") is a California state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint, filed October 16, 2006, against Defendants Adams, Wu, McGuinness, Shen, and Attygalla for violation of the Eighth Amendment. On November 19, 2009, Defendants filed a motion for summary judgment. (Doc. 26.) 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 18, 2010, the Magistrate Judge filed a Findings and Recommendations herein which was served on the parties and which contained notice to the parties that any objection to the Findings and Recommendations was to be filed within twenty-one days.

Defendants filed an Objection to the Findings and Recommendations on August 23, 2010. (Doc. 37.) Plaintiff filed an Objection to the Findings and Recommendations on September 7, 2010. (Doc. 40.) Plaintiff also filed motions to strike Defendants' amended declarations on August 20 and August 25 of 2010. (Docs. 36, 39.) Defendants filed an opposition to the motion to strike on August 23, 2010. (Doc. 38.)

In accordance with the provisions of 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings and Recommendations to be supported by the record and by proper analysis in part as stated herein, and provides the following additional analysis. The Court will first address Plaintiff's motion to strike.

I. Plaintiff's Motions To Strike

Plaintiff contends that Defendants' amended declarations, submitted on August 2, 2010, should be stricken. On July 20, 2010 the Magistrate Judge provided Defendants with the opportunity to submit amended declarations in support of their motion for summary judgment. (Doc. 32.) Defendants' original declarations had not been signed pursuant to 28 U.S.C. § 1746, and thus they were not competent evidence for purposes of a summary judgment motion. Plaintiff objected to the Magistrate Judge's order. Defendants subsequently submitted their amended declarations on August 2, 2010.

Plaintiff contends that Defendants' amended declarations are not signed pursuant to Federal Rule of Civil Procedure 11(a) and 56(e). (Docs. 36, 39.) Plaintiff further contends that it is highly prejudicial to Plaintiff that the Court "assisted" Defendants' counsel in this process. (Id.)

Defendants contend that the declarations are properly signed. (Doc. 38.) Having examined the court docket, the Court find that the declarations were filed with electronic signatures, with a document of original signatures attached to Defendants' objection. This is a permitted method of signature under the Local Rules of this Court. L.R. 131(f), (g).

As to the Court permitting Defendants to submit amended declarations, the Court has the inherent power to manage its docket. United States v. W. R. Grace, 526 F.3d 499, 509 (9th Cir. 2008)(citation omitted). It is not the preference of this Court to adjudicate motions on procedural defects if the defects can be easily cured. Plaintiff would have been afforded the opportunity to cure the same deficiencies in his declarations if they had been present. Thus, Plaintiff's motions to strike are denied.

II. Plaintiff's Objections*fn1

Plaintiff contends that the Magistrate Judge erred in finding that Plaintiff failed to dispute Defendants' undisputed facts regarding the high intraocular eye pressure which Plaintiff experienced. (Pl.'s Obj. 3-4.) Plaintiff contends that Defendants failed to prescribe three medications for treatment of Plaintiff's glaucoma, as recommended by an eye specialist, and failed to schedule timely follow-ups with the specialists. Plaintiff fails to demonstrate deliberate indifference on the part of Defendants.

Failure to follow a specialists' recommendation is not sufficient by itself to demonstrate deliberate indifference. See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2006) (difference of opinion between medical professionals is deliberately indifferent if prisoner shows that treatment chosen was medically unacceptable under the circumstances and chosen in conscious disregard of an excessive risk to ...


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