Opinion
CIVIL ACTION NO.: CV210-051.
June 29, 2010
ORDER
After an independent and de novo review of the record, the undersigned concurs with the Magistrate Judge's Report and Recommendation, to which Objections have been filed. In his Objections, Plaintiff reasserts the allegations in his complaint, and newly asserts that he was told by Dr. Chippi that if he was treated when he first tested positive for H. Pylori that he could have been cured. However, this new claim is not supported by the evidence Plaintiff submitted with his original complaint, which states, "once an individual tests positive for the H. Pylori antibody, they will generally remain positive for the remainder of their life." (Doc. No. 1-1, p. 16). As noted in the Magistrate Judge's Report, Plaintiff was not treated for an active H. Pylori infection in 2008 because he did not exhibit symptoms of an infection at that time. (Doc. No. 12, p. 2; Doc No. 1-1, pp. 15-16). A positive indication of the presence of H. Pylori is not an indication of an active infection. (Doc. No. 1-1, p. 16). Plaintiff's disagreement with the medical opinion from prison staff is not sufficient to support an Eighth Amendment claim. Plaintiff's Objections are without merit and are OVERRULLED. The Report and Recommendation of the Magistrate Judge is adopted as the opinion of the Court. Plaintiff's Complaint is DISMISSED for failure to state a claim upon which relief may be granted. The Clerk is authorized and directed to enter the appropriate Judgment.
SO ORDERED.