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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN HACKETT,

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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)

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Plaintiff Steven Hackett is a prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action is currently proceeding on plaintiff’s

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claims against defendant Dr. Toor for deliberate indifference to a serious medical need in

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violation of the Eighth Amendment and negligence under state law and his claim against

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defendant Sisodia for negligence under state law.

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On January 9, 2017, defendants filed a motion to dismiss. (Doc. No. 22.) On February 3,

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2017, plaintiff filed his opposition to that motion and on February 10, 2017, defendants filed a

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reply. (Doc. Nos. 23, 24.) On July 24, 2017, the assigned magistrate judge issued findings and

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recommendations recommending that (1) defendants’ motion to dismiss be granted due to

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plaintiff’s failure to comply with the claim presentation requirement of the California

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Government Claims Act; (2) plaintiff’s state law negligence claim against defendant Toor be
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dismissed; (3) defendant Sisodia be dismissed from this action; and (4) this action proceed only

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on plaintiff’s Eighth Amendment deliberate indifference claim against defendant Dr. Toor. (Doc.

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No. 28.) The findings and recommendations were served on the parties and contained notice that

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any objections thereto must be filed within fourteen days after service. (Id. at 4.) On August 16,

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2017, the magistrate judge granted plaintiff an extension of time to file his objections. (Doc. No.

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30.) On August 17, 2017, plaintiff filed his objections. (Doc. No. 31.) On August 25, 2017,

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defendants filed a response to plaintiff’s objections. (Doc. No. 32.)

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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,

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plaintiff’s objections fail to identify any error in the magistrate judge’s findings and

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recommendations. (Doc. No. 32 at 1–2.) Rather, plaintiff asks this court to recognize a

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cognizable claim against defendant Sisodia for deliberate indifference to his serious medical need

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in violation of the Eighth Amendment. (Doc. No. 31 at 3.) In this regard, plaintiff contends that

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defendant Physician Assistant Sisodia’s decision to treat plaintiff with short-term pain

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medication, despite an earlier authorization by a Pain Management Committee of a long-term

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opiate medication plan, amounted to “a wanton infliction of pain and a deliberate indifference to

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plaintiff’s serious medical need.” (Id.) However, in screening plaintiff’s second amended

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complaint on September 21, 2016, the magistrate judge dismissed plaintiff’s Eighth Amendment

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claim against defendant Physician’s Assistant Sisodia. (Doc. No. 15 at 9.) In that screening order

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the magistrate judge noted that plaintiff’s allegations with respect to his deliberate indifference

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claim against defendant Sisodia reflected merely a difference of opinion between an inmate and

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prison medical staff as to the appropriate medical treatment, which was insufficient to state a

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cognizable Eighth Amendment violation. (Id.) Finally, the magistrate judge concluded that the

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granting of further leave to amend was not warranted because plaintiff had been given multiple

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opportunities allege a cognizable deliberate indifference claim against defendant Sisodia, but

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failed to do so. (Id. at 11.)

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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
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indifference claim against defendant Sisodia which was dismissed by prior order. As to those

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claims addressed in the pending findings and recommendations, the court finds that the findings

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and recommendations are supported by the record and by proper analysis.

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Accordingly,

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1. The findings and recommendations issued on July 24, 2017 (Doc. No. 28) are adopted

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in full;
2. Defendants’ motion to dismiss as to plaintiff’s state law negligence claims is granted

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based on plaintiff’s failure to comply with the claim presentation requirement of the

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California Government Claims Act;

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3. Plaintiff’s state law negligence claim against defendant Toor is dismissed;

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4. Defendant Sisodia is dismissed from this action;

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5. This action shall proceed only against defendant Dr. Toor with respect to plaintiff’s

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claim of deliberate indifference in violation of the Eighth Amendment regarding

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conduct in May-June 2016; and

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6. This matter is referred back to the magistrate judge for further proceedings consistent

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with this order.
IT IS SO ORDERED.
Dated:

September 8, 2017
UNITED STATES DISTRICT JUDGE

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