Vallejo v. Allison et al

Filing 31

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING Defendant's Motion to Dismiss for Failure to Exhaust and Failure to State a Claim, and REQUIRING Defendant to File Answer Within Twenty Days 15 , 29 , signed by District Judge Anthony W. Ishii on 3/12/14. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FLORENCIO VALLEJO,
Plaintiff,

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v.
KATHLEEN ALLISON, et al.,
Defendants.

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Case No. 1:10-cv-02352-AWI-SKO PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING
DEFENDANT’S MOTION TO DISMISS
FOR FAILURE TO EXHAUST AND
FAILURE TO STATE A CLAIM, AND
REQUIRING DEFENDANT TO FILE
ANSWER WITHIN TWENTY DAYS
(Docs. 15 and 29)

_____________________________________/

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Plaintiff Florencio Vallejo, a state prisoner proceeding pro se and in forma pauperis, filed
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this civil rights action pursuant to 42 U.S.C. § 1983 on December 17, 2010. This action is
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proceeding on Plaintiff’s amended complaint, filed on January 3, 2012, against Defendant Gray
for acting with deliberate indifference to Plaintiff’s medical needs, in violation of the Eighth

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Amendment.
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The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302. On October 16, 2013, the Magistrate Judge filed a Findings and
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Recommendations which was served on the parties and which contained notice to the parties that
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Objections were to be filed within twenty days. Defendant filed an Objection on November 8,
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2013. Local Rule 304(b). Plaintiff did not file a response. Local Rule 304(d).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the Court finds the Findings
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and Recommendations to be supported by the record and by proper analysis.
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The Court rejects Defendant’s argument that Plaintiff’s inmate appeal failed to place prison

1 officials on notice as to the nature of the wrong for which redress is now sought. Sapp v.
2 Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010).
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The Court also rejects Defendant’s argument that Plaintiff fails to state a claim because his

4 allegations amounts to nothing more than a mere disagreement in treatment. Snow v. McDaniel,
5 681 F.3d 978, 987-88 (9th Cir. 2012). In light of Plaintiff’s allegations that he had a medical need
6 for a wheelchair and Defendant Gray’s failure to provide him one caused him to have to drag
7 himself to medical appointments and meals for nineteen days, Defendant is not entitled to
8 dismissal at the pleading stage on the basis that Plaintiff has alleged “nothing more” than a
9 disagreement over treatment. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Snow, 681
10 F.3d at 987-88.
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Finally, Defendant mischaracterizes the import of the Magistrate Judge’s statements as

12 they relate to the intersection of statutory screening pursuant to 28 U.S.C. § 1915A and motions
13 brought pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 30, Obj., p. 4 n.1) The Court
14 previously addressed this issue in greater detail and no further discussion here is merited. Chavez
15 v. Yates, No. 1:09-cv-01080-AWI-SKO PC, 2013 WL 5519594 (E.D. Cal. Oct. 3, 2013), findings
16 and recommendations adopted in full, 2013 WL 5883670 (E.D. Cal. Oct. 30, 2013).
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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Findings and Recommendations, filed on October 16, 2013, is adopted in full;

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2.

Defendant’s motion to dismiss for failure to exhaust and failure to state a claim,

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3.

Defendant shall file an answer within twenty (20) days from the date of service of

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IT IS SO ORDERED.

25 Dated: March 12, 2014

SENIOR DISTRICT JUDGE

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