Duarte v. Enemoh et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 3/5/2016 recommending dismissal of action for failure to state a claim re 12 Amended Prisoner Civil Rights Complaint. Referred to Judge Dale A. Drozd; Objections to F&R due by 4/11/2016. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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PATRICK F. DUARTE,
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Plaintiff,
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v.
ENEMOH, et al.,
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Case No. 1:15-cv-01213-DAD-DLB PC
FINDINGS AND RECOMMEDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO STATE A CLAIM
THIRTY-DAY DEADLINE
Defendants.
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Plaintiff Patrick F. Duarte (“Plaintiff”) is a California state prisoner proceeding pro se in this
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civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 5, 2015. Pursuant to
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Court order, he filed a First Amended Complaint on December 23, 2015. He names Dr. Chinyere
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Nyenke, Dr. David G. Smith, Dr. James Jackson and Dr. Frank Chang as Defendants.
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A.
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SCREENING REQUIREMENT
The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C.
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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been paid,
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the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . .
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fails to state a claim upon which relief may be granted.” 28 U.S.C.
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§ 1915(e)(2)(B)(ii).
A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to
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‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 555). While factual
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allegations are accepted as true, legal conclusions are not. Id.
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Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or other
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federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 1087, 1092
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(9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Jones v.
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Williams, 297 F.3d 930, 934 (9th Cir. 2002). Plaintiff’s allegations must link the actions or
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omissions of each named defendant to a violation of his rights; there is no respondeat superior
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liability under section 1983. Iqbal, 556 U.S. at 676-77; Simmons v. Navajo County, Ariz., 609 F.3d
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1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009);
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Jones, 297 F.3d at 934. Plaintiff must present factual allegations sufficient to state a plausible claim
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for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 556 U.S.
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at 678; Moss, 572 F.3d at 969.
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B.
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SUMMARY OF PLAINTIFF’S ALLEGATIONS
Plaintiff is currently incarcerated at California State Prison- Los Angeles County. The events
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at issue occurred while he was incarcerated at the California Substance Abuse Treatment Facility
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(“CSATF”) in Corcoran, California.
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Plaintiff alleges that he suffered a work-related injury to both shoulders on March 1, 2011.
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He was seen by the facility nurse, who confirmed shoulder injuries and pain in both shoulders.
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On March 15, 2011, Plaintiff saw Defendant Nyenke. Defendant Nyenke diagnosed a right
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shoulder injury as a “biceps rupture with contraction” and “right biceps constant with possible biceps
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tendon rupture.” ECF No. 12, at 3. Defendant Nyenke confirmed pain in both shoulders.
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On March 29, 2011, Plaintiff returned to Defendant Nyenke. She confirmed pain in both
shoulders.
On March 30, 2011, Defendant Smith confirmed the “unnecessary surgery recommendation
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of March 29, 2011, supported by MRI procedure of March 22, 2011, and May 8, 2011.” ECF No.
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12, at 3. Defendant Smith identified the “alleged biceps tear” as a possible lipoma. ECF No. 12, at
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3. He confirmed pain in both shoulders and recommended an excisional biopsy of the mass on the
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right shoulder.
On April 27, 2011, Defendant Smith stated, “In addition to the right shoulder, there is a mass
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in the deltoid region which appears to be a lipoma but I cannot be certain.” ECF No. 12, at 3.
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Defendant Smith recommended an excisional biopsy of the mass in the right shoulder.
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On May 17, 2011, a report found impingement syndrome and extensive narrow edema
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beneath the tear and retraction.1 Plaintiff states that this procedure, and one performed on May 22,
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2012, contradicts findings from March 18, 2011.
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On July 19, 2011, Plaintiff requested another MRI of the right shoulder. Plaintiff told
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Defendant Nyenke that he felt the muscle in his right deltoid tear on March 15, 2011. She confirmed
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pain in both shoulders.
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On March 28, 2012, Defendant Smith confirmed the complete rotator cuff tear in the left
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shoulder. He also noted that a repeat MRI of the right shoulder was pending. The previous MRI of
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the right shoulder was “read as normal.” ECF No. 12, at 4. Defendant Smith confirmed pain in both
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shoulders.
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Defendant Smith confirmed pain in both shoulders on July 11, 2012.
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On September 25, 2012, Defendant Jackson confirmed that Plaintiff did not meet the criteria
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for a right deltoid shoulder MRI and indicated that he would seek a third opinion in the Triage and
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Treatment Area (“TTA”) and Correctional Treatment Center (“CTC”). Defendant Jackson ordered a
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Plaintiff states that the report is incorrectly labeled, “right shoulder.”
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biopsy of the mass in the right shoulder to determine if the mass was a lipoma or a ruptured deltoid
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muscle.
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Defendant Jackson called Plaintiff into the clinic on October 1, 2012, and told Plaintiff that
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he was scheduled for a needle biopsy. He redirected Plaintiff to the TTA at approximately 3:30 p.m.
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Defendant Chang examined Plaintiff’s right shoulder deltoid area.
On October 4, 2012, Defendant Smith again recommended an MRI of the mass in Plaintiff’s
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right deltoid area. He confirmed pain in both shoulders.
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Defendant Jackson ordered a needle biopsy at TTA on November 27, 2012.
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On January 8, 2013, Defendant Chang examined Plaintiff’s right shoulder deltoid muscle for
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a possible needle biopsy.
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On March 11, 2012, Defendant Chang rejected the punch biopsy and recommended an
excisional biopsy.
On August 28, 2013, Defendant Smith again recommended an MRI of Plaintiff’s right
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shoulder to determine the nature of the mass. The MRI was denied and/or rejected by Defendant
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Jackson, who then recommended an excisional biopsy. Defendant Jackson noted that this would be
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a “prudent move” but Plaintiff declined the procedure. ECF No. 12, at 4. Plaintiff did not meet the
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criteria for an MRI.
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Based on these facts, Plaintiff alleges a violation of the Eighth Amendment.
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DISCUSSION
While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical
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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference
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to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012),
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overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014);
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Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th
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Cir. 2006). Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat
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[his] condition could result in further significant injury or the unnecessary and wanton infliction of
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pain,” and (2) that “the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680
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F.3d at 1122 (citing Jett, 439 F.3d at 1096).
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Deliberate indifference is shown by “(a) a purposeful act or failure to respond to a prisoner’s
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pain or possible medical need, and (b) harm caused by the indifference.” Wilhelm, 680 F.3d at 1122
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(citing Jett, 439 F.3d at 1096). The requisite state of mind is one of subjective recklessness, which
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entails more than ordinary lack of due care. Snow, 681 F.3d at 985 (citation and quotation marks
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omitted); Wilhelm, 680 F.3d at 1122.
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Plaintiff alleges that Defendants were made aware of his suffering, but failed to treat him.
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He contends that Defendants had a “duty pursuant to the Eighth Amendment” to provide for his
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comfort and safety, and that they knew that his health and safety would be at great risk if they failed
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to carry out such duty. ECF No. 12, at 5. Plaintiff then goes on to list the steps that he believes
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Defendants should have taken, including monitoring his condition, reporting meaningful changes to
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his primary care physician and implementing a protocol to minimize and control pain. He also
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suggests that they should have cared for him in a “non-negligent manner.” ECF No. 12, at 6.
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In the prior screening order, the Court explained that his allegations demonstrated that he
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received constant care for his shoulder over two years. During this period, diagnostic testing results
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changed and treating sources had differing opinions as to the proper course of treatment. While
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Plaintiff now omits some of the treatment in his amended complaint, perhaps to avoid this finding,
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his allegations fail to demonstrate that any Defendant acted with deliberate indifference, i.e., that any
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of Defendants “[knew] of and disregard[ed] an excessive risk to [plaintiff’s] health or safety.”
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Farmer, 511 U.S. at 837.2
Plaintiff’s disagreement with the suggested treatment does not rise to the level of an Eighth
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Amendment violation. A difference of opinion between a prisoner-patient and prison medical
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authorities regarding treatment does not give rise to a [section] 1983 claim.” Franklin v. Oregon,
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662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted); accord Snow v. McDaniel, 681 F.3d
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978, 987-88 (9th Cir. 2012); Wilhelm v. Rotman, 680 F.3d 1113, 1122-23 (9th Cir. 2012). To
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prevail, plaintiff “must show that the course of treatment the doctors chose was medically
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unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard
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of an excessive risk to plaintiff’s health.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)
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Plaintiff cannot simply omit facts alleged in his original complaint in an effort to avoid certain findings by the Court.
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(internal citations omitted); accord Snow, 681 F.3d at 987-88. Plaintiff has not made such a
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showing.
Plaintiff’s allegations continue to demonstrate no more than negligence. Indeed, Plaintiff
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specifically states that Defendants had a duty to “care for [him] in a non-negligent manner.” ECF
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No. 12, at 5. However, “[m]edical malpractice does not become a constitutional violation merely
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because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1977). Even
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assuming Defendants erred, an Eighth Amendment claim may not be premised on even gross
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negligence by a physician. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
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Plaintiff therefore fails to state a claim against any Defendant for violation of the Eighth
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Amendment. At most, Plaintiff has alleged a state law negligence claim, a claim over which this
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Court would not have jurisdiction absent a viable federal claim. 28 U.S.C. § 1367(c)(3); Parra v.
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PacifiCare of Az., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v.
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Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001).
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D.
FINDINGS AND RECOMMENDATIONS
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Plaintiff’s complaint does not state any cognizable claims against any Defendant. He has
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been informed of the deficiencies of his allegations, but he has failed to correct them. Given that
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Plaintiff simply omitted facts and did not set forth any additional facts to support an Eighth
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Amendment claim, the Court finds that further amendment is not warranted. Akhtar v. Mesa, 698
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F.3d 1202, 1212-13 (9th Cir. 2012); Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000); Noll v.
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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987).
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The Court therefore RECOMMENDS that this action be DISMISSED WITHOUT LEAVE
TO AMEND for failure to state a claim for which relief may be granted.
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These Findings and Recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir.1991).
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IT IS SO ORDERED.
Dated:
/s/ Dennis
March 5, 2016
L. Beck
UNITED STATES MAGISTRATE JUDGE
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