Hackett v. Fisher et al

Filing 33

ORDER Adopting 28 Findings and Recommendations Regarding Defendants' Motion to Dismiss 22 , signed by District Judge Dale A. Drozd on 9/8/17. C. Sisodia (Physician's Assistant) terminated. Matter Referred Back to Magistrate Judge. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN HACKETT, 12 13 14 15 No. 1:15-cv-00670-DAD-BAM (PC) Plaintiff, v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO DISMISS FISHER, et al., Defendants. (Doc. No. 28) 16 17 18 Plaintiff Steven Hackett is a prisoner proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action is currently proceeding on plaintiff’s 20 claims against defendant Dr. Toor for deliberate indifference to a serious medical need in 21 violation of the Eighth Amendment and negligence under state law and his claim against 22 defendant Sisodia for negligence under state law. 23 On January 9, 2017, defendants filed a motion to dismiss. (Doc. No. 22.) On February 3, 24 2017, plaintiff filed his opposition to that motion and on February 10, 2017, defendants filed a 25 reply. (Doc. Nos. 23, 24.) On July 24, 2017, the assigned magistrate judge issued findings and 26 recommendations recommending that (1) defendants’ motion to dismiss be granted due to 27 plaintiff’s failure to comply with the claim presentation requirement of the California 28 Government Claims Act; (2) plaintiff’s state law negligence claim against defendant Toor be 1 1 dismissed; (3) defendant Sisodia be dismissed from this action; and (4) this action proceed only 2 on plaintiff’s Eighth Amendment deliberate indifference claim against defendant Dr. Toor. (Doc. 3 No. 28.) The findings and recommendations were served on the parties and contained notice that 4 any objections thereto must be filed within fourteen days after service. (Id. at 4.) On August 16, 5 2017, the magistrate judge granted plaintiff an extension of time to file his objections. (Doc. No. 6 30.) On August 17, 2017, plaintiff filed his objections. (Doc. No. 31.) On August 25, 2017, 7 defendants filed a response to plaintiff’s objections. (Doc. No. 32.) 8 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case and carefully reviewed the entire file. As noted by defendants, 10 plaintiff’s objections fail to identify any error in the magistrate judge’s findings and 11 recommendations. (Doc. No. 32 at 1–2.) Rather, plaintiff asks this court to recognize a 12 cognizable claim against defendant Sisodia for deliberate indifference to his serious medical need 13 in violation of the Eighth Amendment. (Doc. No. 31 at 3.) In this regard, plaintiff contends that 14 defendant Physician Assistant Sisodia’s decision to treat plaintiff with short-term pain 15 medication, despite an earlier authorization by a Pain Management Committee of a long-term 16 opiate medication plan, amounted to “a wanton infliction of pain and a deliberate indifference to 17 plaintiff’s serious medical need.” (Id.) However, in screening plaintiff’s second amended 18 complaint on September 21, 2016, the magistrate judge dismissed plaintiff’s Eighth Amendment 19 claim against defendant Physician’s Assistant Sisodia. (Doc. No. 15 at 9.) In that screening order 20 the magistrate judge noted that plaintiff’s allegations with respect to his deliberate indifference 21 claim against defendant Sisodia reflected merely a difference of opinion between an inmate and 22 prison medical staff as to the appropriate medical treatment, which was insufficient to state a 23 cognizable Eighth Amendment violation. (Id.) Finally, the magistrate judge concluded that the 24 granting of further leave to amend was not warranted because plaintiff had been given multiple 25 opportunities allege a cognizable deliberate indifference claim against defendant Sisodia, but 26 failed to do so. (Id. at 11.) 27 28 Notably, plaintiff never sought reconsideration of the September 21, 2016 screening order. The court need not now re-visit plaintiff’s attempts to allege an Eighth Amendment deliberate 2 1 indifference claim against defendant Sisodia which was dismissed by prior order. As to those 2 claims addressed in the pending findings and recommendations, the court finds that the findings 3 and recommendations are supported by the record and by proper analysis. 4 Accordingly, 5 1. The findings and recommendations issued on July 24, 2017 (Doc. No. 28) are adopted 6 7 in full; 2. Defendants’ motion to dismiss as to plaintiff’s state law negligence claims is granted 8 based on plaintiff’s failure to comply with the claim presentation requirement of the 9 California Government Claims Act; 10 3. Plaintiff’s state law negligence claim against defendant Toor is dismissed; 11 4. Defendant Sisodia is dismissed from this action; 12 5. This action shall proceed only against defendant Dr. Toor with respect to plaintiff’s 13 claim of deliberate indifference in violation of the Eighth Amendment regarding 14 conduct in May-June 2016; and 15 6. This matter is referred back to the magistrate judge for further proceedings consistent 16 17 18 with this order. IT IS SO ORDERED. Dated: September 8, 2017 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3

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