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Larry Tate v. Matthew Cate

September 10, 2012


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant O‟Brien retaliated against him, by interfering in his medical treatment, because he filed a complaint against her. Now pending before the Court is Defendant O‟Brien‟s motion for summary judgment. (Doc. 60.) Plaintiff did not file an opposition to Defendants‟ motion.*fn1 For the reasons set forth below, Defendant‟s motion for summary judgment is GRANTED.


A. Factual Background

On October 1, 2007, Plaintiff went to the medical clinic because he felt he had chest 4 congestion. (Doc. 16 at 45) He requested the nurse on duty provide him a breathing treatment. Id. 5 Plaintiff claims that the nurse on duty did not know how to administer the treatment so the nurse asked 6 Defendant O‟Brien for assistance. Id. Plaintiff claims that O‟Brien explained to the other nurse 7 incorrectly how to determine whether the treatment was needed. Because of this incorrect 8 information, it appeared as though he did not need the breathing treatment and his request for the 9 treatment was denied. Id. Plaintiff claims that he attempted to return to his cell but was overcome by the congestion. (Doc. 16 at 47) Custodial staff called for medical attention and Plaintiff alleges that when O‟Brien arrived, she told staff that Plaintiff was "faking." (Doc. 16 at 52) Plaintiff submitted a grievance form and a citizen‟s complaint related to O‟Brien‟s actions on October 8, 2007. (Doc. 16 at 45, 52)

On March 7, 2008, Plaintiff filed another grievance against O‟Brien. (Doc. 16 at 60) In this grievance, Plaintiff complained that on March 5, 2008, O‟Brien interfered in a "7362" (a Health Service Request), he submitted in which he sought to see the doctor about the medication he was receiving. Id. In this 7362, Plaintiff complained that "someone in B-clinic keeps changing and/or reducing my medication (neurotin) for neuropathy/carpol tunnel, from 1200 mg twice a day to 600 mg twice a day which is causing me undue pains and discomforts. I am not going to send (8) eight sick call slips this month before seeking other avenues." (Doc. 16 at 63) O‟Brien responded to the request in writing by stating, "According to your chart you only received 2400 mg 2x a day for 10 days 7/07 -- 6/17. After that, every order has been for 600 mg 2x a day. The only one who changes orders is the MD. You‟ll have to submit a 7362 to see him & discuss your issues." Id. Plaintiff submitted a grievance about this response also. Id.

B. Procedural History

Plaintiff filed his complaint and initiated this action on April 30, 2009. (Doc. 1.) On October 92, 2009, the Court screened Plaintiff‟s complaint pursuant to 28 U.S.C. § 1915A and dismissed it with leave to amend. The Court screened the amended complaint on November 23, 2010 and found 2 that it stated a cognizable claim for retaliation against Defendants O‟Brien and Villasayne. (Doc. 18) 3

Defendant O‟Brien answered on March 14, 2011 (Doc. 31) and, when Defendant Villasayne could not 4 be located for service, the Court dismissed the complaint as to that defendant on February 28, 2012 5

(Doc. 62). 6

In authorizing service of the complaint as to Defendant O‟Brien, the Court limited the 7 retaliation claims to Plaintiff‟s claims that O‟Brien "reduced Plaintiff‟s medications, tampered with 8 Plaintiff‟s medical records, and interfered with Plaintiff‟s ability to see a physician" as result of 9 Plaintiff‟s filing a grievance against her on October 8, 2007. (Doc. 19 at 10) All other claims, including the claim that O‟Brien improperly denied the breathing treatment and delayed treatment to him on October 1, 2007 were dismissed. Id. On January 23, 2012, Defendant filed the instant motion for summary judgment. (Doc. 60) Plaintiff failed to oppose the motion despite the Court‟s urging. (Docs. 64, 65)


A. Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A material fact is one which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute regarding a material fact is genuine if ...

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