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Justin Thomas Miller v. John Lamontagne; Richard Butcher; Jose Otero; and David

March 1, 2012

JUSTIN THOMAS MILLER,
PLAINTIFF,
v.
JOHN LAMONTAGNE; RICHARD BUTCHER; JOSE OTERO; AND DAVID SMITH, DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Report and Recommendation issued by United States Magistrate Judge Bernard G. Skomal (ECF No. 61) recommending that the Court (1) grant the Motion to Dismiss filed by Defendant Richard Butcher (ECF No. 48), (2) grant in part and deny in part the Motion to Dismiss filed by Defendants John Lamontagne and David Smith (ECF No. 50), and (3) grant the Motion to Dismiss filed by Defendant Jose Otero (ECF No. 51).

BACKGROUND

On April 1, 2010, Plaintiff, a state prisoner proceeding pro se, initiated this action by filing a Complaint under the Civil Rights Act, 42 U.S.C. § 1983. (ECF No. 1). On July 20, 2010, Defendant Richard Butcher filed a motion to dismiss. (ECF No. 18). On January 28, 2011, the Magistrate Judge issued a Report and Recommendation recommending that the Court grant Defendant Butcher's motion to dismiss. (ECF No. 42). On March 4, 2011, the Court adopted the Report and Recommendation and granted Defendant Butcher's motion to dismiss.

(ECF No. 45).

On March 30, 2011, Plaintiff filed an amended complaint ("Complaint") against Butcher, John LaMontagne, Jose Otero, and David Smith, alleging that Defendants violated his Eighth Amendment rights to safety and medical care by failing to prevent and treat an injury sustained at Richard J. Donovan Correctional Facility ("Donovan") on July 2, 2009. (ECF No. 46).

Plaintiff alleges that on June 29, 2009, Plaintiff reported to work as a machine operator at the shoe factory located in Donovan and discovered two safety hazards at the machine he was assigned to operate. Id. at 3. Plaintiff alleges that he immediately reported the dangerous work conditions to the superintendent in charge of the factory, Defendant John Lamontagne, who told Plaintiff, "don't worry about it, just make shoes." Id. at 3-4. Plaintiff alleges that he was working at the same hazardous machine on July 2, 2009 when his glove was caught in a rotating portion of the machine and his finger was crushed. Id. at 4-5. Plaintiff alleges that Defendant Lamontagne was negligent and deliberately indifferent to excessive risks to Plaintiff's safety posed by the safety hazards of the machine, in violation of Plaintiff's Eighth Amendment rights.

Plaintiff alleges that he was hospitalized for the injury to his finger at Alvarado Hospital from July 2, 2011 to July 6, 2011. Id. at 8. Plaintiff alleges that Defendants Butcher and Otero, medical doctors at Alvarado Hospital, disregarded his need for adequate pain medication and failed to provide adequate medical care beyond first aid. Id. Plaintiff alleges that he was referred to Defendant Smith, an orthopedic surgeon, when he returned to Donovan. Id. at 13. Plaintiff alleges that Defendant Smith examined Plaintiff for 82 seconds and failed to provide Plaintiff with necessary treatment or pain medication. Id. at 13-14. Plaintiff alleges that Defendants Butcher, Otero, and Smith were negligent and deliberately indifferent to his serious medical needs in violation of Plaintiff's Eighth Amendment rights.

On April 8, 2011, Defendant Butcher filed a motion to dismiss and strike. (ECF No. 48). On April 19, 2011, Plaintiff filed an opposition. (ECF No. 52). On April 22, 2011, Defendant Butcher filed a reply. (ECF No. 53)

On April 13, Defendants Lamontagne and Smith filed a motion to dismiss. (ECF No. 50). On April 26, 2011, Plaintiff filed an opposition. (ECF No. 54). On May 10, 2011, Defendants Lamontagne and Smith filed a reply. (ECF No. 56).

On April 14, 2011, Defendant Otero filed a motion to dismiss. (ECF No. 51). Plaintiff did not file any opposition to the motion to dismiss filed by Defendant Otero. However, on May 2, 2011, Defendant Otero filed a reply. (ECF No. 55).

On January 22, 2012, the Magistrate Judge issued a Report and Recommendation on the motions to dismiss filed by Defendants. (ECF No. 61). The Magistrate Judge recommends denying the motion to dismiss the claims alleged against Defendant Lamontagne and granting the motions to dismiss the claims alleged against Defendants Smith, Butcher and Otero. The docket reflects that no objections to the Report and Recommendation have been filed.

REVIEW OF THE REPORT AND RECOMMENDATION

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge 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). The district court need not review de novo those portions of a report and recommendation to which neither party ...


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