UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 8, 2011
MARK A. VINZANT, PLAINTIFF,
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: United States District Judge VIRGINIA A. Phillips
ORDER ACCEPTING IN PART AND DECLINING TO ACCEPT IN PART REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE,, AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the Report and Recommendation of Magistrate Judge ("Report") and the objections to the Report filed by both parties. Good cause appearing, after having made a de novo determination of the portions to which objections were directed, the Court accepts those findings and recommendations in the Report except those portions regarding Plaintiff's allegations of an Eighth Amendment right violation due to an alleged delay in scheduling physical therapy after November 28, 2005.
As to those portions of the Report (found at pages 31-33 and 35-36), regarding the delay in providing physical therapy after November 28, 2005, the Court declines to accept the findings and recommendations of the Magistrate Judge.
As found in the Report, Plaintiff's refusal to follow medical orders to stop wearing a cervical collar resulted in weakening of his neck muscles and consequent pain and stiffness in his neck. On November 28, 2005, approximately four months after the motor vehicle accident, Dr. Fernandez ordered physical therapy for Plaintiff's cervical pain. To the extent Plaintiff is now attempting to raise a claim that the delay in scheduling physical therapy constituted a violation of his right under the Eighth Amendment to medical care while incarcerated, it is a new claim not raised properly. As Defendants point out in their Objections, in his deposition Plaintiff identified only three bases for his Eighth Amendment claim: lack of consultation/diagnosis by an orthopedic specialist; failure to receive chiropractic care, aquatic therapy and electrical stimulation; and failure to receive more pain medication. See Doc. No. 115, attachment 14 (Depo. of Mark Vinzant) at 95-98. (Count 2 of Plaintiff's First Amended Complaint, the Bivens claim, pleads the claim only in general terms, e.g., "Defendants, their agents and employees, with knowledge of plaintiff's medical needs, and/or with deliberate indifference to such medical needs, have acted or failed to act in such a way as to deprive plaintiff of necessary and adequate medical care thereby endangering [t]he plaintiff's health and well being. " (First Amended Complaint ¶ 36; Doc. No. 66.) Even if Plaintiff had identified the failure to schedule physical therapy in his opposition to Defendants' summary judgment motion, which he did not, that would not have been sufficient. A defendant has no obligation to respond to allegations outside the pleadings, and the Court need not consider them. See Wasco Prods. Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) ("Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.") (quoting Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990)). Taha v. Engstrand, 987 F.2d 505, 507 (8th Cir. 1993) (theory of liability outside the pleadings is not a ground for denying summary judgment).
Accordingly, the Court grants summary judgment in favor of the federal Defendants on all remaining claims against them.
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