ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING RECONSIDERATION OF ORDER DISMISSING ACTION WITH PREJUDICE AND JUDGMENT THEREON (ECF No. 39) CASE TO REMAIN CLOSED
Plaintiff Roberto Herrera is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On December 26, 2012, findings and recommendations denying reconsideration of the order dismissing this action with prejudice and judgment thereon (F&R Den. Recons., ECF No. 39) were filed in which the Magistrate Judge recommended that Plaintiff's purported second motion opposing the findings and recommendations adopted and entered as judgment on November 29, 2012 dismissing this action with prejudice for failure to state a claim, construed as a motion for reconsideration (Sec. Obj. to F&R, ECF No. 33), be DENIED by the District Judge.*fn1 The parties were notified that objection, any, was due within fourteen days.
On January 7, 2013, Plaintiff filed objections to the Magistrate Judge findings and recommendations denying reconsideration. (Obj. to F&R Den. Recons., ECF No. 40.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations denying reconsideration to be supported by the record and by proper analysis.
In his objections, Plaintiff reiterates arguments in his second motion
opposing the findings and recommendations, and re-argues medical
indifference allegations previously considered by the Court and found
insufficient. He asserts that his chronic pain complaints are being
treated with medications that are not effective (Obj. to F&R Den.
Recons. at 2:4-8, 4:1-26); the court in Herrera v. Wheeler,*fn2
a civil rights action pending in the Eastern District found a
cognizable medical indifference claim on similar allegations (id. at
4:1-26); and his chronic pain symptoms have not been
effectively treated with drugs such as opiates due to prison pain management
committee policy. (Id. at 5:18-6:5.) He again suggests his case is
extraordinary and counsel should be appointed to assist him.
Defendants have not denied, delayed or interfered with treatment, or intentionally offered medically unacceptable treatment sufficient to support an Eighth Amendment claim. Plaintiff's request for appointment of counsel was reviewed and denied by the Magistrate Judge for lack of required exceptional circumstances. Plaintiff's mere re-argument is not sufficient as objection and raises no material issue of law or fact under the findings and recommendations denying reconsideration.
Wheeler, an unrelated, still pending district court action against non-party defendants, provides no factual or legal basis for arguing error or newly discovered evidence in this action. There is nothing to suggest an identity of claims, a final judgment on the merits, and identity or privity between parties necessary for application of res judicata and collateral estoppel. Rest.2d Judgments § 17; see also Adams v. California Dep't of Health Servs., 487 F.3d 684, 688--89 (9th Cir. 2007); Headwaters, Inc., v. U.S. Forest Serv., 399 F.3d 1047, 1052, (9th Cir. 2005) quoting Tahoe--Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Likewise, his other unrelated allegations involving chronic pain complaints are not grounds to not adopt the findings and recommendations.
Plaintiff's objections lack merit and fail to raise any material issue of law or fact under the findings and recommendations.
Accordingly, IT IS HEREBY ORDERED that:
1. The Court adopts the findings and recommendations filed December 26, 2012, denying reconsideration of the order dismissing this action with prejudice and judgment thereon (ECF No. 39) in full; and
2. The Court Clerk is directed that this case shall remain closed.