UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

JARED DALE GILLESPIE, 

Plaintiff, 

v. 

DR. GARTH GULICK, et al., 

Defendants. 

COFFIN, Magistrate Judge. 

2:14-cv-00950-TC 

FINDINGS AND 

RECOMMENDATION 

Defendants filed a Motion for Summary Judgment (#47) on 

July 6, 2015. On July 7, 2015, plaintiff was sent a Summary 

Judgment Advice Notice (#49), which advised plaintiff that his 

response to defendants' motion was due by August 10, 2015. By 

Order (#53) plaintiff's motion for extension of time to file 

a response to defendants' motion for summary judgment was 

allowed. Pursuant to that order, plaintiff's response was due 

by September 9, 2015 and the motion was taken under advisement 

1 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-00950-TC Document 59 Filed 01/08/16 Page 1 of 4
by the court as of that date. 

Plaintiff did not filed a response to defendants' motion 

or requested an extension of time in which to do so. By Order 

(#57) entered November 30, 2015, plaintiff was allowed 14 days 

to show cause why defendants' unopposed motion for summary 

judgment (#47) should not be allowed. 

Plaintiff was advised that failure to show cause as 

directed in the court's order would result in the court 

granting the motion for summary judgment for the reasons set 

forth therein and dismissing this case for failure to 

prosecute. 

Plaintiff did not file a response to the court's order to 

show cause. Therefore, this case should be dismissed for 

failure to prosecute. 

In addition, I find that the uncontradicted declaration 

of Dr. Steven Shel ton and Attachments 1-13 ( #4 8) establish 

that defendants were not deliberately indifferent to 

plaintiff's serious medical needs. To the contrary, the 

record before the court establishes that defendants treated 

plaintiff with a variety of prescription drugs, consulted with 

outside experts and ultimately approved surgery for plaintiff 

condition. I further find that plaintiff's claims of 

deliberate indifference are undermined by considerable 

evidence of drug-seeking behavior and malingering by plaintiff 

2 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-00950-TC Document 59 Filed 01/08/16 Page 2 of 4
and self reported exaggerated symptoms and pain levels. 

The undisputed facts before the court establish that 

defendants response to plaintiff's alleged symptoms did not 

violate any of plaintiff's clearly established constitutional 

rights. However, even if some minimal encroachment did 

arguably occur, defendants are qualifiedly immune from 

liability for damages because their response was a reasonable 

interpretation of the law governing the circumstances they 

confronted. Brosseau v. Haugen, 543 U.S. 194, 202; Harlow v. 

Fitzgerald, 457 U.S. 800. 

Based on the foregoing, I find that there are no genuine 

issues of fact remaining in this case and that defendants are 

entitled to judgment as a matter of law. Accordingly, 

defendants' Motion for Summary Judgment (47) should be allowed 

and the Clerk of the Court should be directed to enter a 

judgment dismissing this proceeding with prejudice. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of Appeals. Any notice 

of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen (14) days from the date of service of a copy of this 

recommendation within which to file specific written 

objections with the court. Thereafter, the parties have 

3 - FINDINGS AND RECOMMENDATION 

Case 2:14-cv-00950-TC Document 59 Filed 01/08/16 Page 3 of 4
fourteen ( 14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determinations of the Magistrate Judge will be considered a 

·waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to the Magistrate Judge's 

recommendation. 

Any appeal. £orm an order adopting this Findings and 

Recommendation or judgment dismissing this case woul.d be 

£rivol.ous and not taken in good £aith. There£ore, pl.ainti££'s 

in forma pauperis status shoul.d be revoked. 

DATED this day of January, 2016. 

in 

gistrate Judge . 

4 - FINDINGS AND RECOMMENDATION 

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