Ellis v. Reddy

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/04/13 recommending that this action be dismissed with prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT ELLIS,

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No. No. 2:12-cv-1691 JAM KJN P
Plaintiff,

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v.

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REDDY,

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FINDINGS AND RECOMMENDATIONS
Defendant.

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Plaintiff is a state prisoner at High Desert State Prison, who proceeds in forma pauperis

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and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. On September

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20, 2013, the district judge adopted the undersigned’s findings and recommendations, granting

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defendant’s motion to dismiss, but according plaintiff leave to file an amended complaint. (ECF

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No. 27.) The undersigned has reviewed plaintiff’s amended complaint and, for the following

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reasons, recommends that this action be dismissed.

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Plaintiff claims that defendant Dr. Reddy was deliberately indifferent to plaintiff’s serious

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medical needs. Defendant’s motion to dismiss was granted pursuant to the finding that plaintiff’s

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Eighth Amendment claim against Dr. Reddy was precluded on res judicata grounds through the

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date of final judgment in plaintiff’s prior similar case (Case No. 2:11-cv-0363 GEB CKD P), viz.,

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December 16, 2011. (See ECF Nos. 27, 23.) The court granted plaintiff leave to file an amended

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complaint for the purpose of stating a cognizable Eighth Amendment claim against Dr. Reddy for
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the period commencing December 17, 2011. However, the court noted that “neither party has

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clarified whether Dr. Reddy works at Folsom State Prison (plaintiff’s prior place of incarceration

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. . .), or High Desert State Prison (plaintiff’s current place of incarceration); nor does either party

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identify the date of plaintiff’s transfer to High Desert State Prison. Clearly, if Dr. Reddy ceased

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treating plaintiff prior to December 17, 2011, then the instant action is precluded in its entirety.”

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(ECF No. 23 at 6 n.5.)

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In his amended complaint (see ECF No. 28 at 5-10 (identical to the amended complaint at

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ECF No. 26)), plaintiff states in pertinent part: “Dr. Reddy who works at CSP-Old Folsom

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stop[ped] treating the plaintiff at or around August 2010, the petitioner (sic) was transfer[r]ed

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12-27-13 (sic) to High Desert.” (ECF No. 28 at 6.) The concession that Dr. Reddy stopped

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treating plaintiff in August 2010, well before the first date (December 17, 2011) on which

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plaintiff may allege a new claim against this defendant, demonstrates that the instant action

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should be dismissed in its entirety based on res judicata grounds.

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Should plaintiff continue to believe that he is receiving inadequate medical treatment, he
must pursue his care and concerns with the medical staff at High Desert State Prison.

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For these reasons, IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed with prejudice.

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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 28 U.S.C. § 636(b)(l). Within 14 days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be

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filed and served within 14 days after service of the objections. The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the District Court’s

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order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 4, 2013

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elli1691.am.cmplt.

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