Richard Jackson v. E. Grant et al

Filing 95

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Judge R. Gary Klausner. IT IS ORDERED:1. The Report and Recommendation 91 is accepted; 2. Defendants' Motion to Dismiss is GRANT ED, and plaintiff's federal civil rights claims are DISMISSED without further leave to amend and with prejudice for failure to state a claim, and his state law claims are dismissed without further leave to amend but without prejudice; 3. The clerk shall serve this Order on all counsel or parties of record. SEE ORDER FOR DETAILS. (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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RICHARD JACKSON,

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Plaintiff,

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v.

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E. GRANT, et al.,

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Defendants.

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No. CV 15-9642-RGK (PLA)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS, AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

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I.

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INTRODUCTION

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On October 6, 2017, the United States Magistrate Judge issued a Report and

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Recommendation (“R&R”), recommending that this action be dismissed without further leave to

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amend for failure to state a claim. (ECF No. 91). On November 27, 2017, following an extension

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of time, plaintiff filed Objections to the R&R. (“Objections”; ECF No. 94).

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II.

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DISCUSSION

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In his Objections, plaintiff argues that his diabetic condition is a serious medical condition.

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The Magistrate Judge concluded, however, that plaintiff had adequately alleged an objectively

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serious medical need. See R&R at 5.

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Next, in his Objections, as alleged in his pleadings, plaintiff’s only allegation concerning

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defendant Grant is that she “constantly illegally denied diabetic insulin” to plaintiff. (ECF No. 94

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at 2). Although plaintiff now includes a list of “witnesses” (id. at 4), plaintiff once again fails to set

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forth factual allegations showing any specific incident when defendant Grant refused to provide,

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or prevented plaintiff from receiving, his insulin. Plaintiff also argues, with no supporting factual

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allegations, that defendant Grant’s “removal” from her position was relevant to plaintiff’s claim

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against her. (Id. at 3). In deciding whether plaintiff’s allegations plausibly state a claim, the Court

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does not assume that such conclusory and unsupported statements are true. See, e.g., Chavez

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v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (“a court discounts conclusory statements,

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which are not entitled to the presumption of truth, before determining whether a claim is

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plausible”). Accordingly, nothing in plaintiff’s Objections alters the conclusion reached in the

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Report and Recommendation that plaintiff’s allegations are insufficient to nudge plaintiff’s federal

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civil rights claims “across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007).

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III.

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CONCLUSION

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Complaint, the

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other records on file herein, the Magistrate Judge’s Report and Recommendation, and plaintiff’s

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Objections to the Report and Recommendation. The Court has engaged in a de novo review of

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those portions of the Report and Recommendation to which objections have been made. The

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Court accepts the recommendations of the Magistrate Judge.

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ACCORDINGLY, IT IS ORDERED:

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1.

The Report and Recommendation is accepted;

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2.

Defendants’ Motion to Dismiss is granted, and plaintiff’s federal civil rights claims

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are dismissed without further leave to amend and with prejudice for failure to state a claim, and

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his state law claims are dismissed without further leave to amend but without prejudice;

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3.

The clerk shall serve this Order on all counsel or parties of record.

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DATED: November 30, 2017
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HONORABLE R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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