2:04-cv-0478-GEB-GGH-P.United States District Court, E.D. California.
September 12, 2006
ORDER
GARLAND BURRELL JR., District Judge
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On January 10, 2006, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Plaintiff has filed objections to the findings and recommendations.
The magistrate judge recommended that defendants’s summary judgment be denied but that defendant be granted summary judgment sua sponte on an alternative ground raised by the court. In particular, the magistrate judge recommended that defendant Bueno be granted summary judgment sua sponte on grounds that plaintiff had presented no evidence that
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she acted with deliberate indifference to his serious medical needs. The magistrate judge found that plaintiff had presented no evidence that defendant Bueno knew that he was suffering from a serious medical problem related to heat exposure.
In his objections, plaintiff states that he asked defendant Bueno more than ten times to be taken in from the heat. Plaintiff also states that he told defendant Bueno that he had a serious life threatening condition that was exacerbated by heat exposure.
Based on the information contained in plaintiff’s objections, the court finds that defendant Bueno is not entitled to summary judgment sua sponte for the reasons stated in the findings and recommendations. Whether defendant Bueno acted with deliberate indifference to plaintiff’s serious medical needs is a disputed material fact.
The recommendation that defendant’s summary judgment motion be denied is supported by the record and by the magistrate judge’s analysis.
Lastly, Plaintiff has not shown he is entitled to an injunction.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 10, 2006, are adopted in part, as stated above;
2. Defendant’s October 7, 2005, summary judgment motion is denied;
3. Plaintiff’s October 5, 2005, motion for injunctive relief is denied.
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