Robinson v. Catlett et al

Filing 54

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Dismissing Claims Against Defendants Ball, Bourland, Correa, Janda, Nelson, Ochoa, O'Shaughnessy, Price, Salgado and Tilton. Denying Motion to Dismiss Claims Against Defendants Arvizu, Catlett, Garrett , Johnson, Noriega, and Widmann. This Court exercises its judicial discretion and declines to grant leave to amend the complaint at this time. To the extent that this Order contradicts the Report and Recommendation, the Report and Recommendation is overruled. The remaining Defendants Arvizu, Catlett, Garrett, Johnson, Noriega and Widmann will file their answers with the Court within thirty days of the date of this order. Signed by Judge Marilyn L. Huff on 2/25/09. (All non-registered users served via U.S. Mail Service).(ag) (jrl).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 This Court has reviewed the Report and Recommendation submitted by the Magistrate Court T. CATLETT, Sergeant; GARRETT, Correctional Officer; W.J. PRICE, Facility Captain; M.E. BOURLAND, Chief Deputy Warden; DIRECTOR/SECRETARY OF CORRECTIONS & REHABILITATION; R. JOHNSON, Lieutenant; T. OCHOA Chief Deputy Warden; WHIDMAN, Correctional Officer; R. NELSON, Lieutenant; G.J. JANDA, Assoc. Warden; D. NORIEGA, L.V.N.; J.M. SALGADO, R.N.; M. CORREA, Supervising R.N. II; K. BALL, Chief Physician/Surgeon; V. O'SHAUGHNESSY, Appeal Examiner, Defendants. vs.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
NEHEMIAH ROBINSON, CDCR #J-71342 Plaintiff, Civil No. 08-0161 H (BLM) ORDER: (1) DISMISSING CLAIMS AGAINST DEFENDANTS BALL, BOURLAND, CORREA, JANDA, NELSON, OCHOA, O'SHAUGHNESSY, PRICE, SALGADO, TILTON (2) DENYING MOTION TO DISMISS CLAIMS AGAINST DEFENDANTS ARVIZU, CATLETT, GARRETT, JOHNSON, NORIEGA, and WIDMANN

24 on December 12, 2008, and the subsequent Objections filed by the Plaintiff on December 18, 2008. 25 Having considered both, this Court ADOPTS the Report and Recommendation of the Magistrate Judge 26 as follows: 27 28 Judicial Notice: This Court GRANTS Plaintiff's and Defendants' requests for judicial notice. -1-

08cv00161-H (BLM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Count 1 a. Eighth Amendment Claims

This Court GRANTS the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants BOURLAND, PRICE and TILTON. This Court DENIES the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants ARVIZU, CATLETT and GARRETT. b. Fourteenth Amendment Due Process and Equal Protection Claims

This Court GRANTS the motion to dismiss Plaintiff's Fourteenth Amendment Claims against ARVIZU, BOURLAND, CATLETT, GARRETT, PRICE and TILTON. c. ADA and RA Claims i) Defendants in their Individual Capacities

This Court GRANTS the motion to dismiss Plaintiff's Americans with Disability Act ("ADA") and Rehabilitation Act ("RA") Claims against ARVIZU, BOURLAND, CATLETT, GARRETT, PRICE and TILTON in their INDIVIDUAL CAPACITIES. ii) Defendants in their Official Capacities

This Court GRANTS the motion to dismiss Plaintiff's ADA and RA Claims against Defendants BOURLAND, PRICE and TILTON in their OFFICIAL CAPACITIES. This Court DENIES the motion to dismiss Plaintiff's ADA and RA Claims against Defendants ARVIZU, CATLETT and GARRETT in their OFFICIAL CAPACITIES. Count 2 a. Eighth Amendment Claims

This Court GRANTS the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants OCHOA and TILTON. This Court DENIES the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants CATLETT, and JOHNSON. b. Fourteenth Amendment Due Process and Equal Protection Claims

This Court GRANTS the motion to dismiss Plaintiff's Fourteenth Amendment Claims against Defendants CATLETT, JOHNSON, OCHOA and TILTON. -2-

08cv00161-H (BLM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

c.

ADA and RA Claims i) Defendants in their Individual Capacities

This Court GRANTS the motion to dismiss Plaintiff's ADA and RA Claims against Defendants CATLETT, JOHNSON, OCHOA and TILTON in their INDIVIDUAL CAPACITIES. ii) Defendants in their Official Capacities

This Court GRANTS the motion to dismiss Plaintiff's ADA and RA Claims against Defendants OCHOA and TILTON in their OFFICIAL CAPACITIES. This Court DENIES the motion to dismiss Plaintiff's ADA and RA Claims against Defendants CATLETT and JOHNSON in their OFFICIAL CAPACITIES. Count 3 a. Eighth Amendment Claims

This Court GRANTS the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants JANDA and NELSON. This Court DENIES the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendant WIDMANN. b. Fourteenth Amendment Due Process and Equal Protection Claims

This Court GRANTS the motion to dismiss Plaintiff's Fourteenth Amendment Claims against Defendants JANDA, NELSON and WIDMANN. c. ADA and RA Claims i) Defendants in their Individual Capacities

This Court GRANTS the motion to dismiss Plaintiff's ADA and RA Claims against Defendants JANDA, NELSON and WIDMANN in their INDIVIDUAL CAPACITIES.. ii) Defendants in their Official Capacities

This Court GRANTS the motion to dismiss Plaintiff's ADA and RA Claims against Defendants JANDA and NELSON in their OFFICIAL CAPACITIES. This Court DENIES the motion to dismiss Plaintiff's ADA and RA Claims against Defendant WIDMANN in his OFFICIAL CAPACITY.

-3-

08cv00161-H (BLM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Count 4 a. Eighth Amendment Claims

This Court GRANTS the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendants BALL, CORREA, O'SHAUGHNESSY, SALGADO and TILTON. This Court DENIES the motion to dismiss Plaintiff's Eighth Amendment Claims against Defendant NORIEGA. b. First Amendment Claims

This Court GRANTS the motion to dismiss Plaintiff's First Amendment Claims against Defendants BALL, CORREA, O'SHAUGHNESSY, NORIEGA, SALGADO and TILTON. Plaintiff's Official Capacity Claims and Requests for Injunctive and Declaratory Action a. Official Capacity Claims

With the exception of the ADA and RA Claims against Defendants ARVIZU, CATLETT, GARRETT and JOHNSON outlined above, the Court GRANTS the motion to dismiss Plaintiff's monetary claims against all Defendants in their OFFICIAL CAPACITIES. b. Injunctive and Declaratory Action

This Court GRANTS the motion to dismiss Plaintiff's request for injunctive and declaratory relief against ALL DEFENDANTS.

Conclusion As it does not appear reasonable that the Plaintiff can cure deficiencies in this pleading through the allegation of additional facts, this Court exercises its judicial discretion and DECLINES to grant LEAVE TO AMEND the complaint at this time. Lopez v. Smith, 203 F.3d 1122, 1124 (9th Cir. 2000). To the extent that this Order contradicts the Report and Recommendation, the Report and Recommendation is OVERRULED. /// /// /// /// -4-

08cv00161-H (BLM)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS HEREBY ORDERED that the remaining Defendants Arvizu, CATLETT, GARRETT, JOHNSON, NORIEGA, WIDMANN will file their answers with the Court within THIRTY DAYS of the date of this order.

IT IS SO ORDERED. DATED: February 25, 2009 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

-5-

08cv00161-H (BLM)