(PC) Swafford v. Neuschmid ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEE SWAFFORD, No. 2:19-cv-0721 DAD AC P 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 R. NEUSHMID, et al., DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 Defendants. (Doc. Nos. 46, 65) 16 17 18 Plaintiff Lee Swafford is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On August 2, 2022, the assigned magistrate judge issued findings and recommendations, 22 recommending that defendant’s motion for summary judgment (Doc. No. 46) be granted. (Doc. 23 No. 65.) The findings and recommendations were served upon all parties and contained notice 24 that any objections were to be filed within fourteen (14) days. (Id. at 14.) Plaintiff filed timely 25 objections to the pending findings and recommendations. (Doc. No. 66.) 26 In his objections, plaintiff argues that defendant disregarded his medical need for a lower 27 bunk bed due to his chronic lower back pain, recent back surgery, and “severe orthopedic 28 conditions of hips, knees, ankles, feet or upper extremity.” (Id. at 7, 11–12.) Plaintiff notes that 1 | he was receiving physical therapy and had previously received injections to assist with pain relief. 2 | Ud. at 7-8, 11.) Plaintiff contends that because defendant did not issue him a lower bunk 3 || accommodation was the cause of his fall from the top bunk bed, resulting in injury. (Ud. at 8.) 4 | The undersigned finds plaintiff's arguments to be unpersuasive. The magistrate judge addressed 5 || the alleged facts upon plaintiff's objections are based in the pending findings and 6 || recommendations, and the undersigned agrees that the evidence submitted on summary judgment 7 || establishes that plaintiff's belief he should have been granted the requested accommodation 8 || amounts to a mere difference of opinion as to the proper course of medical treatment for his pain. 9 || (See Doc. No. 65 at 13.) That difference of opinion is insufficient to support a claim of deliberate 10 || indifference to serious medical needs in violation of the Eighth Amendment. Toguchi v. Chung, 11 | 391 F.3d 1051, 1058 (9th Cir. 2004) (a difference of opinion between an inmate and prison 12 | medical personnel regarding the appropriate course of treatment does not establish deliberate 13 || indifference to one’s serious medical needs). 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 15 | court has conducted a de novo review of this case. Having carefully reviewed the entire file, 16 | including plaintiffs objections, the court finds the findings and recommendations to be supported 17 || by the record and by proper analysis. 18 Accordingly, 19 1. The findings and recommendations issued August 2, 2022 (Doc. No. 65) are 20 adopted in full; 21 2. Defendant’s motion for summary judgment (Doc. No. 46) is granted; 22 3. Judgement is hereby entered in favor of defendant; and 23 4. The Clerk of the Court is directed to close this case. 24 IT IS SO ORDERED. * | Dated: _ September 9, 2022 Da A. 2, ayel 26 UNITED STATES DISTRICT JUDGE 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28