Horob v. McCone County, No. 1:2009cv00156 - Document 56 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 52 in full. 34 Motion for Summary Judgment filed by McCone County is GRANTED. The Court certifies that any appeal would not be taken in good faith. Signed by Judge Richard F. Cebull on 12/28/2010. Mailed to Horob. (TAG, )

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Horob v. McCone County Doc. 56 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONT ANA 2010 : BILLINGS DIVISION , TODD KENNETH HOROB, Plaintiff, v. McCONE COUNTY, Defendant. ) ) ) ) ) ) ) ) _. } ", DY [; 28 ,f, ' •. Cause No. CV-09-1S6-BLG-RFC ORDER ADOPTlNG FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE ) --------------------) United States Magistrate Judge Carolyn Ostby has entered Findings and Recommendation (Doc. 52) with respect to McCone County's Motion for Summary Judgment. (Doc. 34). Upon service of a magistrate judge's findings and recommendation, a party has 14 days to file written objections. 28 U.S.C. § 636(bXl). Borob has filed timely objections. (Doc. 53). Accordingly, the Court must make a de novo determination of those portions of the Findings and Recommendations to which objection is made. 28 U.S.C. § 636(b Xl). For the following reasons, Horob's objections are overruled. 1 Dockets.Justia.com After a de novo review, the Court determines the Findings and Recommendation of Magistrate Judge Ostby are well grounded in law and fact and HEREBY ORDERS they be adopted in their entirety. Denial of Medical Care - State Law Negligence Claim In response to Defendant's Motion for Summary Judgment, Horob argues his blood pressure issues had been going on for days while he was incarcerated in Valley County and he could not medical help because McCone County refused to give Valley County permission for him to get medical treatment. (pac. 35-4). He argues "[a]ny doctor will tell you that high of [sic] blood pressure that is reported is a lead to a stroke." (Doc. 39 at 3). Horob presents no admissible medical evidence to raise a genuine issue of material fact on this issue. Defendant correctly argues that evidence of causation must be proved with expert medical testimony unless the cause of injury is obvious. Moralli v. Lake County, 255 Mont. 23,30-31,839 P.2d 1287,1291 (1992); Cain v. Stevenson, 218Mont. 101,105, 706P.2d 128, 131 (1985). The only testimony regarding causation came from Horob when he opined that any doctor would say high blood pressure can cause a stroke. Horob is not trained in medical issues and cannot demonstrate causation. Summary judgment is appropriate. 2 Denial of Medical Care - Federal Claims Horob's inability to establish causation as set forth above is also fatal to his federal medical care claim. Summary judgment is appropriate. Americans with Disabilities Act Claim Defendant argues that Horob provided no evidence that he had a physical impainnent that substantially limited a major life activity, as required by 42 U.S.c. § 12102. Defendant also argues that Horob could not be regarded as having an impainnent since the only date on which there is evidence that Horob was in a wheelchair was on April 2, 2009 and an individual is not regarded as having an impainnent if the impainnent is transitory (less than six months). See 42 U.S.c. § 12102(3)(B). Because Horob provided no evidence as to what disability he suffered from on April2, 2009, it is impossible to find that he is a qualified individual with a disability. Summary judgment is appropriate. Montana Human Rights Act Claim Mont. Code Ann. § 49-2-512(1) requires a party to exhaust administrative remedies prior to filing a Montana Human Rights Act claim. Horob testified at his deposition that he did not file a complaint with any state or federal agency regarding the lack of accessibility to the McCone County Courthouse. (Doc. 35-4 3 Horob deposition p. 6, Ins. 5-14). Further, as previously discussed, there is no evidence that Horob was actually disabled on April 2, 2009. Summary Judgment is appropriate. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (Doc. 34) is GRANTED. The Clerk of Court is directed to enter Judgment in favor of Defendant and close this case. The Clerk of Court is also directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. DATED this;<Cday of December, 29H). /( RICHARD F. CEBULL UNITED STATES DISTRICT JUDGE 4

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