Davies v. DelaVega et.al.

Filing 72

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 06/29/17 ORDERING plaintiff's motion for leave to file a fourth amended complaint is denied. The clerk of the court shall assign a district court judge to t his action. U.S. District Judge Morrison C. England Jr. randomly assigned to this action. Also, RECOMMENDING that plaintiff's motion for a preliminary injunction 62 be denied. MOTION for PRELIMINARY INJUNCTION 62 referred to Judge Morrison C. England Jr. 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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AVON DAVIES,

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No. 2:14-cv-2831 CKD P
Plaintiff,

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v.

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M. DELAVEGA,

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ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendants.

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Plaintiff is a California prisoner proceeding pro se with an action for violation of civil

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rights under 42 U.S.C. § 1983. His remaining claim is against defendant Dr. Charles Crosson, an

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ophthalmologist, for a violation of the Eighth Amendment. Plaintiff asserts treatment provided

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by Dr. Crosson amounts to cruel and unusual punishment.

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Plaintiff seeks preliminary injunctive relief. Essentially, plaintiff asks that the court order

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the California Department of Corrections and Rehabilitation (CDCR) to provide plaintiff with an

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examination of his eyes by a “specialist in fungal infections.”

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First, CDCR is not a defendant in this case as it is immune from this action under the

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Eleventh Amendment. E.g. Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam). Therefore, the

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court cannot order CDCR to provide plaintiff with permanent or preliminary injunctive relief.

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Second, this action is not proceeding on a claim for injunctive relief so granting a “preliminary

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injunction” would not be proper.
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The court notes that in the operative third amended complaint, plaintiff makes the same

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request for a preliminary injunction as he does in the motion before the court. When screening

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plaintiff’s third amended complaint, the court construed plaintiff’s request as a request for

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permanent injunctive relief and considered whether to permit plaintiff to proceed on that claim.

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However, the claim was screened out because plaintiff’s assertion in his third amended complaint

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that he suffers from a fungal infection in either one or both of his eyes is based on nothing more

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than self-diagnosis. In his third amended complaint, plaintiff indicates he has been examined by

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defendant Crosson on several occasions and defendant Crosson has indicated that plaintiff does

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not have a fungal infection in either eye. Plaintiff requested a second opinion and defendant

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Crosson granted that request on June 4, 2014. Third Am. Compl. at 19. Plaintiff was examined

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on June 30, 2014 and the unidentified ophthalmologist confirmed that plaintiff does not have of

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fungal infection in either eye. Id. at 19. While the court permitted plaintiff to proceed against

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defendant Crosson on a claim for damages based upon treatment, or lack thereof, provided to

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plaintiff upon presentation of particular symptoms, the allegations in plaintiff’s complaint fail to

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state a claim upon which relief can be granted based upon mere failure to diagnose plaintiff with a

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fungal infection. Finally, it is at least worth noting that a document attached to plaintiff’s motion

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for a preliminary injunction reveals that plaintiff was examined by a doctor at the Modesto Eye

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Surgery Medical Group on September 28, 2015 and the examiner did not find that plaintiff suffers

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from a fungal infection in either eye. ECF No. at 62 at 20.

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For these reasons, plaintiff’s request for a preliminary injunction should be denied.

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As an alternative to his request for a preliminary injunction, plaintiff asks that the court

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order that plaintiff be examined, diagnosed and treated by a specialist in fungal infections at the

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court’s expense. This request is inappropriate in a number of respects, most notably, because

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there is nothing admissible before the court suggesting plaintiff has a fungal infection despite the

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fact that his condition has been reviewed by several physicians.

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Finally, in his reply brief, plaintiff seeks to amend his complaint adding the warden at

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plaintiff’s place of incarceration as a defendant so that the court would have a proper party

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against whom the court could order injunctive relief. Because there is no factual or legal basis for

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ordering injunctive relief, this request will be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for leave to file a fourth amended complaint is denied; and

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2. The Clerk of the Court assign a district court judge to this case.

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IT IS HEREBY RECOMMENDED that plaintiff’s motion for a preliminary injunction

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(ECF No. 62) be denied.

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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 fourteen days

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 29, 2017

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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