The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER (1) ADOPTING FINDINGS AND RECOMMENDATIONS, (2) DENYING DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983 AND FOR FAILURE TO EXHAUST, (3) GRANTING DEFENDANTS' MOTION TO DISMISS DAMAGES CLAIM FOR MENTAL AND EMOTIONAL INJURY, AND (4) REQUIRING DEFENDANTS TO FILE RESPONSE TO COMPLAINT WITHIN TWENTY DAYS (Docs. 15, 22, and 28)
Plaintiff Ken Burke, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 1, 2010. 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 June 20, 2012, the Magistrate Judge issued a findings and recommendations recommending that Defendants' motions to dismiss for failure to state a claim and for failure to exhaust be denied, and Defendants' motions to dismiss Plaintiff's damages claim for mental and emotional injury be granted. 42 U.S.C. § 1997e(a); Fed. R. Civ. P. 12(b). Plaintiff filed a timely objection on July 5, 2012. Defendants did not file an objection or a response to Plaintiff's objection.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the 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. The Magistrate Judge correctly found that Plaintiff failed to allege he suffered any physical injury as a result of his missed medication doses and therefore, any claim for mental and emotional injury is precluded under 42 U.S.C. § 1997e(e). Although Plaintiff objects, he fails to show that he suffered any physical injury as a result of the missed medication. Plaintiff again mentions his stroke, but as documented in the record, Plaintiff's stroke was an entirely separate incident not linked to the missed doses of Lamotrigine. (Doc. 28, F&R, n. 6.)
Accordingly, it is HEREBY ORDERED that:
1. The Court adopts the findings and recommendations filed on June 20, 2012, in full;
2. Defendant Juarez's motion to dismiss, filed on December 27, 2011, and Defendant Enenmoh's motion to dismiss, filed on April 25, 2012, are GRANTED in part and DENIED in part as follows:
a. Defendants' motions to dismiss Plaintiff's claim for failure to state a claim upon which relief may be granted under section 1983 are DENIED;
b. Defendants' motions to dismiss Plaintiff's claim for mental and emotional injury, if such relief is sought, are GRANTED; and
c. Defendants' motions to dismiss Plaintiff's claim for failure to exhaust the available administrative remedies are DENIED; and
3. Defendants shall file a response to Plaintiff's complaint within twenty (20) days from the date of service of this order.
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