(PC) Green v. Church ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WARREN CLEVELAND GREEN, No. 2:18-cv-1931 WBS KJN P 12 Plaintiff, 13 v. ORDER 14 DR. G. CHURCH, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 9, 2020, the magistrate judge filed findings and recommendations herein 21 which were served on all parties and which contained notice to all parties that any objections to 22 the findings and recommendations were to be filed within thirty days. Plaintiff filed objections to 23 the findings and recommendations.1 Defendant filed a response. 24 1 Plaintiff submitted new evidence with his objections. As noted by defendant, the court has 25 discretion whether to consider evidence presented for the first time in a party’s objections to 26 findings and recommendations. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000.) The record reflects that plaintiff was given ample time to submit evidence; therefore, the court 27 declines to consider plaintiff’s new evidence. Moreover, as pointed out in defendant’s response to plaintiff’s objection, the document submitted with plaintiff’s objection appears to be a September 28 2020 dermatology record related to the Quest Diagnostics culture. It fails to establish any link to the ee enn ee en en EE REE IE OI EINE ES 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 2 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 3 | court finds the findings and recommendations to be supported by the record and by proper 4 | analysis. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations filed December 9, 2020, are adopted in full; 7 2. Defendant’s motion for summary judgment (ECF No. 44) is granted; 8 3. Plaintiff's request for injunctive relief (ECF No. 19 at 9) is denied; and 9 4. Judgment in favor of defendant Agarwal is entered, and this action is terminated. 10 | Dated: January 13, 2021 he Lhe ak fant. t<-—- WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 12 13 14 || ‘eree1931.805 15 16 17 18 19 20 21 22 | treatment and tests by Dr. Agarwal that ended in November 2018. Even if the court were to consider the new document, it does not call for a result contrary to the Findings and Recommendations. 23 Specifically, the Findings and Recommendations found that “the evidence shows that defendant treated plaintiff on multiple occasions and did not unduly delay plaintiff's treatment.” (ECF No. 52 at 18.) The dermatology report is from 2020, at least two years after Dr. Agarwal treated plaintiff. (/d. 25 | at 20.) The Findings and Recommendations also acknowledged undisputed evidence that other medical professionals agreed with defendant’s medical opinion that plaintiff did not suffer from a 26 | fungal infection of his facial skin. (/d. at 19.) Defendant’s evidence also demonstrated he did not act with a culpable state of mind required for deliberate indifference. (/d.) 27 | Importantly, the 2020 Quest Diagnostics report submitted with plaintiffs sur-reply, even taken as true by the Magistrate Judge, nonetheless failed to demonstrate any link between Dr. Agarwal, who last 28 | treated plaintiff in November of 2018, and the 2020 report. (ECF No. 52 at 20.)