Lopez v. Giurbino et al

Filing 55

ORDER: Adopting 48 Report and Recommendations; Granting 12 Motion to Dismiss by Defendant Torchia; Denying 13 Motion for Extension of Time to File; Granting in Part and Denying in Part 16 Motion to Dismiss by Defendants Santoyo and Robertson; and Denying 28 Motion for Default Calling For Sanctions. For the reasons stated herein, and for the reasons expressed in the Report which are incorporated herein by reference, the Court overrules Plaintiff's Objection and Adopts the Report in its entirety, Grants-In-Part and Denies-In-Part Defendants Santoyo and Robertson's motion to dismiss, Grants Defendant Torchia's motion to dismiss, and Denies Plaintiff's Motion for Default Calling for Sanctions. The Court also denies Defendants' motion for an extension of time. Should Plaintiff desire to file a Second Amended Complaint, he must do so by 10/29/2010.Signed by Judge Thomas J. Whelan on 9/17/2010. (All non-registered users served via U.S. Mail Service)(leh)

-RBB Lopez v. Giurbino et al

Doc. 55

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ADAM RAY LOPEZ, Plaintiff, CASE NO.09-CV-108 W (RBB) ORDER: 1) ADOPTING REPORT AND RECOMMENDATION (Doc. No. 48.) 2) GRANTING DEFENDANT TORCHIA'S MOTION TO DISMISS (Doc. No. 12.) 3) GRANTING-IN-PART AND DENYING-IN-PART DEFENDANT SANTOYO AND ROBERTSON'S MOTION TO DISMISS (Doc. No. 16.) P. SANTOYO, D.D.S., C. ROBERTSON, C.D.O., and RICHARD TORCHIA, D.D.S. Defendants. 4) DENYING PLAINTIFF'S MOTION FOR DEFAULT CALLING FOR SANCTIONS (Doc. No. 28.) 5) DENYING DEFENDANTS' EX PARTE MOTION FOR AN EXTENSION OF TIME (Doc. No. 13.)

vs.

Dockets.Justia.com

1

Plaintiff Adam Ray Lopez ("Plaintiff"), a state prisoner proceeding pro se and in

2 forma pauperis, filed a Complaint on January 16, 2009, pursuant to 42 U.S.C. § 1983 3 (Doc. No. 1.) Plaintiff filed his First Amended Complaint ("FAC") on July 15, 2009. 4 (Doc. No. 7.)1 Plaintiff asserts that Defendants P. Santoyo, D.D.S., C. Robertson, Chief 5 Dental Officer, and Richard Torchia, D.D.S., violated his Eighth Amendment rights by 6 acting with deliberate indifference to his dental needs.2 On June 17, 2010, Magistrate 7 Judge Ruben B. Brooks issued a Report and Recommendation ("Report"), 8 recommending that the Court GRANT-IN-PART and DENY-IN-PART Defendants 9 Torchia, Santoyo, and Robertson's motion to dismiss, and DENY Plaintiff's Motion for 10 Default Calling for Sanctions.. (Doc. No. 48.) The Report also ordered that any 11 objections were to be filed by July 16, 2010, and any reply filed by July 30, 2010. (Id.) 12 On July 16, 2010, Defendants Santoyo and Robertson filed an objection to the 13 Report. (Doc. No. 49.) The Court is now prepared to consider Defendants' Objection 14 on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1(d.1). For 15 the following reasons, the Court OVERRULES Defendants' objection and ADOPTS 16 the Report. 17 18 I. 19 BACKGROUND At the time Plaintiff filed the FAC, he was incarcerated at the California

20 Substance Abuse Treatment Facility and State Prison in Corcoran, California. (FAC at 21 4.) The events giving rise to this suit occurred while he was housed at Calipatria State 22 Prison. (Id.) 23 25 26 Because Plaintiff's FAC is not consecutively paginated, this Court will use the 27 page numbers assigned by the electronic case filing system when citing this document. 2 Although the Complaint names R. Torchia, Defendant corrects his name to 28 Richard Torchia in the Motion to Dismiss. (FAC at 1-2; Def. Torchia's Mot. at 1.) -209-CV-108 (RBB)

On July 26, 2006, Plaintiff submitted a Health Care Service Request form to

24 prison officials requesting the extraction of his wisdom teeth because he was
1

1 experiencing extreme pain and discomfort. (FAC. at 4, Exh. A.) Defendant Santoyo, 2 a dentist at Calipatria, saw Plaintiff on November 1, 2006. (FAC at 4.) Defendant 3 Santoyo examined Plaintiff and completed a Physician Request for Services form, 4 indicating that Lopez was in "urgent" need of oral surgery for two impacted molars, 5 citing swelling, pain, and infection. (FAC. at 4, Exh. C.) The proposed service provider 6 was Defendant Torchia. (FAC at 4; Exh. C.) 7 Plaintiff alleges that Defendant Santoyo refused to provide him the necessary pain 8 medication. Plaintiff claims that his tooth became infected and swollen, which caused 9 him to have severe migraine headaches and earaches. (FAC at 4.) As a result, Plaintiff 10 was prevented from eating, sleeping, and talking. (Id. at 4.) Plaintiff also faults 11 Defendant Santoyo for failing to follow up on his recommendation for oral surgery, 12 because he was aware that Plaintiff's need was "urgent." (Id. at 4.) Plaintiff asserts that 13 Defendant Santoyo had no justification for referring Plaintiff to an oral surgeon because 14 Defendant Santoyo performs tooth extractions. (Id. at 4.) 15 Defendant Robertson was the Chief Dental Officer at Calipatria who approved 16 the referral to an oral surgeon on November 2, 2006. (FAC at 5-6, Exh. C.) Plaintiff 17 contends that Defendant Robertson was "grossly negligent in managing the people he 18 was supposed to supervise" because "had [D]efendant [R]obertson been meticulous in 19 his supervision duties, he would have ensured that [P]laintiff received the proper pain 20 medication to relieve [P]laintiff['s] pain and suffering." (Id. at 5.) 21 On January 1, 2007, Plaintiff filed a 602 grievance, which was received by the 22 prison administration on January 4, 2007. (FAC at 4; Doc. No. 25.) In the grievance, 23 Plaintiff complained that he had "been patiently waiting since July 2006" to have his 24 wisdom teeth extracted and requested to be sent to an outside hospital to have them 25 removed. (Doc. No. 25. at Exh. B.) On February 20, 2007, Plaintiff received a reply 26 informing him that he was on the oral surgery list to be seen by an outside provider. (Id.) 27 Dissatisfied with the response, Plaintiff filed a first formal level appeal on February 22, 28 2007, seeking priority status to receive his surgery. (Id.) On April 23, 2007, Plaintiff -309-CV-108 (RBB)

1 received a first level review decision which granted his request and set his surgery date 2 for April 30, 2007. (Id.) 3 On April 30, 2007, after ten months of suffering, including the time he initially 4 waited to be seen by Defendant Santoyo, Plaintiff finally received oral surgery. (FAC at 5 6-7.) During the surgery, however, Defendant Torchia chipped one of his other teeth. 6 (Id. at 7.) "Instead of filling-in the chipped tooth, defednet [sic] [T]orchia created a 7 physicians order for a [C]alipatria dental sick call indicating a fillin[g] was needed for 8 [P]laintiff now." (Id. at 7.) As a result, Plaintiff asserts that his chipped tooth became 9 infected, causing him pain and swelling, as well as migraines and earaches, that 10 prevented him from eating, sleeping, or talking. (Id. at 7.) 11 Defendant Santoyo saw Plaintiff on May 15, 2007, for his "chipped tooth, swelling 12 of the lower jaw and his inability to eat solid foods." (Id. at 7.) The doctor noted these 13 and placed Plaintiff on a liquid diet. (Id. at 7.) Defendant Santoyo filled Plaintiff's tooth 14 on July 10, 2007. (Id. at 7.) Plaintiff claims the interim delay caused him pain and 15 suffering. He holds Defendant Torchia responsible for the pain he experienced from 16 April 30, 2007, when the surgeon chipped his tooth, until July 10, 2007, when 17 Defendant Santoyo filled the chip. (Id. at 8.) 18 On January 16, 2009, Plaintiff commenced this action alleging Defendants 19 violated his Eighth Amendment rights by acting with deliberate indifference to his 20 dental needs. (Doc. No. 1.) Plaintiff filed a First Amended Complaint ("Complaint") 21 on July 15, 2009. (Doc. No. 7.) On September 23, 2009, Defendant Torchia filed a 22 Motion to Dismiss. (Doc. No. 12.) Defendants Santoyo and Robertson moved to 23 dismiss Plaintiff's FAC on December 2, 2009. (Doc. No. 16.) 24 On February 11, 2010, Plaintiff filed a Motion for Default Calling for Sanctions 25 and alleged he did not receive a copy of Defendant Torchia's Motion to Dismiss. (Doc. 26 No. 28.) Defendant Torchia filed an Opposition to Plaintiff's Motion on the same day. 27 (Doc. No. 29.) 28 -409-CV-108 (RBB)

1

On June 17, 2010, Magistrate Judge Ruben B. Brooks issued a Report and

2 Recommendation ("Report") recommending that Defendants' motion to dismiss be 3 granted-in-part and denied-in-part and that Plaintiff's Motion for Default Calling for 4 Sanctions be denied. (Doc. No. 48.) 5 Defendants Santoyo and Robertson filed an objection to the Report on July 16, 6 2010. (Doc. No. 49.) Defendants Santoyo and Robertson objected solely to the denial 7 of the motion to dismiss on the grounds that Plaintiff's FAC and Opposition failed to 8 demonstrate that Plaintiff exhausted his administrative remedies. (Id.) 9 On July 19, 2010, Plaintiff filed a Motion for Extension of Time to File a 10 Response/Reply. (Doc. No. 50.) The Court granted Plaintiff's request and gave him 11 until August 16, 2010 to file either an objection to the Report or a response to any other 12 parties' objection. (Doc. No. 51.) In the same Order, the Court cautioned Plaintiff that 13 it would not entertain any additional requests for extensions of time. (Id.) Ignoring that 14 warning, Plaintiff filed a Motion for Extension of Time to File Objections on August 18, 15 2010. (Doc. No. 53.) The Court denied Plaintiff's Motion. 16 17 II. 18 19 LEGAL STANDARDS A. Review of Magistrate Judge's Report A district court's duties concerning a magistrate judge's report and

20 recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the 21 Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must 22 make a de novo determination of those portions of the report . . . to which objection is 23 made," and "may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United 25 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). 26 When no objection is made, however, the district court is not required to review 27 the report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 28 1121 (9th Cir. 2003)(holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the -509-CV-108 (RBB)

1 district judge must review the magistrate judge's findings and recommendations de novo 2 if objection is made, but not otherwise")(emphasis in original); Schmidt v. Johnstone, 3 263 F. Supp. 2d 1219, 1226 (D. Arizona 2003) (concluding that where no objections 4 were filed, the District Court had no obligation to review the magistrate judge's report). 5 This rule of law is well established within the Ninth Circuit and this district. See Wang 6 v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005)("Of course, de novo review of a 7 R & R is only required when an objection is made to the R & R.")(emphasis 8 added)(citing Renya-Tapia, 328 F.3d 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 9 949 (S.D. Cal. 2005) (Lorenz, J.) (adopted Report without review because neither party 10 filed objections to the Report despite the opportunity to do so, "accordingly, the Court 11 will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 12 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 13 14 15 B. Motions to Dismiss The Court must dismiss a cause of action for failure to state a claim upon which

16 relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 17 12(b)(6) tests the complaint's sufficiency. See North Star Int'l. v. Arizona Corp. 18 Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). All material allegations in the complaint, 19 "even if doubtful in fact," are assumed to be true. Id. The court must assume the truth 20 of all factual allegations and must "construe them in the light most favorable to the 21 nonmoving party." Gompper v. VISX, Inc., 298 F.3d 893, 895 (9th Cir. 2002); see also 22 Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1580 (9th Cir. 1996). 23 As the Supreme Court explained, "While a complaint attacked by a Rule 24 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 25 obligation to provide the `grounds' of his `entitlement to relief' requires more than labels 26 and conclusions, and a formulaic recitation of the elements of a cause of action will not 27 do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). Instead, the 28 allegations in the complaint "must be enough to raise a right to relief above the -609-CV-108 (RBB)

1 speculative level." Id. at 1964­65. A complaint may be dismissed as a matter of law 2 either for lack of a cognizable legal theory or for insufficient facts under a cognizable 3 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). 4 Where a plaintiff appears in propria persona in a civil rights case, the court must 5 also be careful to construe the pleadings liberally and afford plaintiff any benefit of the 6 doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 7 1988). However, at a minimum, even a pro se plaintiff must allege with at least some 8 degree of particularity over acts which defendants engaged in that support his claim. 9 Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -709-CV-108 (RBB)

III.

DISCUSSION - DEFENDANT SANTOYO AND ROBERTSON'S OBJECTION As mentioned above, Defendants Santoyo and Robertson object to the

Magistrate Judge's conclusion that Plaintiff sufficiently exhausted his administrative remedies. (Doc. No. 48.) Santoyo and Robertson contend that Plaintiff failed to exhaust his administrative remedies by not advancing his appeal to the Second and Third levels of review. (Id. at 2.) Alternatively, Defendants Santoyo and Robertson contend that even if Plaintiff did see through the entire appeals process, Plaintiff failed to provide prison authorities notice of the alleged misconduct, and as such, Plaintiff failed to exhaust properly. For the reasons cited below, the Court OVERRULES the objection and ADOPTS the Report. A. Plaintiff Exhausted All Administrative Remedies Available

The Report recommends that Defendants Santoyo and Robertson's motion to dismiss for failure to exhaust administrative remedies be denied. Relying on Brown, the Report explains that "Because Plaintiff received the relief he requested in response to his first level appeal, he did not need to pursue the appeal any further to exhaust his

1 claim." (Report at 10; citing Brown v. Valoff, 422 F.3d 926, 935 n.10 (9th Cir. 2005)).3 2 The Ninth Circuit has held that failure to exhaust non-judicial remedies is a 3 matter of abatement not going to the merits of the case and is properly raised pursuant 4 to a motion to dismiss. Ritza v. Int'l Longshoremen's & Warehousemen's Union, 837 5 F.2d 365, 368­69 (9th Cir. 1988). Defendants have the burden of showing that a 6 plaintiff has not exhausted his administrative remedies. Jones v. Bock, 127 S.Ct. 910, 7 919 (2007); Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). In deciding a motion 8 to dismiss for failure to exhaust non-judicial remedies, the court may look beyond the 9 pleadings and decide disputed issues of fact. Ritza, 837 F.2d at 369. 10 The Prison Litigation and Reform Act ("PLRA") states: "no action shall be 11 brought with respect to prison conditions under [42 U.S.C. § 1983], or any other federal 12 law, by a prisoner confined in any jail, prison or other correctional facility until such 13 administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). 14 Exhaustion is required prior to the filing of any prisoner lawsuit concerning prison life, 15 whether the claims involve general conditions or specific incidents and whether they 16 allege excessive force or some other wrong. Porter v. Nussle, 534 U.S. 516, 532 (2002). 17 "Even when the prisoner seeks relief not available in grievance proceedings, notably 18 money damages, exhaustion is a pre-requisite to suit," Id. at 524, so long as the "prison 19 administrative process . . . could provide some sort of relief on the complaint stated," 20 Booth v. Churner, 532 U.S. 731, 734 (2001) (emphasis added). 21 The State of California provides its prisoners and parolees the right to 22 administratively appeal any departmental decision, action, condition or policy perceived 23 by those individuals as adversely affecting their welfare. Cal. Code Regs. tit. 15, 24 § 3084.1(a). Exhausting the administrative remedies involves several steps: (1) informal 25 26 For clarification, the focus in Brown is not on the relief requested, but rather, 27 the relief available. Brown v. Valoff, 422 F.3d 926, 935 ("We conclude . . . that a 28 prisoner need not press on to exhaust further levels of review once he has either received all `available' remedies at an intermediate level of review or been reliably informed by an administrator that no remedies are available."). -809-CV-108 (RBB)
3

1 resolution, (2) formal written appeal on a CDC 602 inmate appeal form, (3) "second 2 level appeal" to the institution head or designee, and finally (4) "third level appeal" to 3 the Director of the California Department of Corrections. Barry v. Ratelle, 985 F. Supp. 4 1235, 1237 (S.D. Cal. 1997) (citing Cal. Code Regs. tit. 15, § 3084.5). The third level, 5 or "Director's Level," of review shall be final and exhausts all administrative remedies 6 available in the Department of Corrections. Cal. Dep't of Corrections Operations 7 Manual § 54100.11, "Levels of Review"; Barry, 985 F. Supp. at 1237­38; Irvin v. 8 Zamora, 161 F. Supp. 2d 1125, 1129 (S.D. Cal. 2001). 9 As mentioned above, Plaintiff filed a 602 grievance on January 1, 2007, which was 10 received by prison administration on January 4, 2007. (FAC at 4; Doc. No. 25.) On 11 February 20, 2007, Plaintiff received a reply informing him that he was on the oral 12 surgery list to be seen by an outside provider. (Id.) Dissatisfied with the response, 13 Plaintiff filed a first formal level appeal on February 22, 2007, seeking priority status to 14 receive his surgery. (Id.) On April 23, 2007, Plaintiff received a first level review 15 decision which granted his request and set his surgery date for April 30, 2007. (Id.) 16 It is undisputed that Plaintiff did not proceed beyond the first level and pursue 17 the next two steps of the review process. (Doc. No. 40 at 8.) However, Plaintiff argues 18 that because he received the surgery that he requested, he had no other administrative 19 remedies to exhaust. (Id. at 9.) As mentioned above, the Report agreed. 20 In contrast, Defendants contend that "Since [P]laintiff still wanted to file a 21 lawsuit, he was obligated to proceed to the next level of review even though a lawsuit 22 could not be initiated in the prison system." (Doc. No. 49 at 3.) The Court disagrees. 23 Plaintiff could have avoided this discussion by simply appealing every issue to the 24 highest level. Indeed, courts have recognized that doing so may be the most prudent 25 course of action. See Brown, 422 F.3d at 935 n.10 (explaining that "it may be advisable 26 for an inmate to appeal every issue to the highest level to avoid any question as to 27 whether the administrative process has been adequately exhausted....") But Defendants 28 -909-CV-108 (RBB)

1 Santoyo and Robertson still have the burden to demonstrate that Plaintiff failed to 2 exhaust his prison remedies. 3 Having reviewed the moving papers, the Court believes that Defendants have 4 simply failed to show that Plaintiff had any available remedy once he received the first 5 level review decision that set his requested surgery date for April 30, 2007--less than 6 a week from the notice of that decision. More specifically, Defendants have failed to 7 show that the second formal level of review "could [have] provide[d] [Plaintiff with] 8 some sort of relief." Booth, 532 U.S. at 734. "Establishing as an affirmative defense, the 9 existence of further "available" administrative remedies requires evidence, not 10 imagination." Brown, 422 F.3d at 940. 11 In sum, because Defendants have failed to show the existence of any available 12 remedies, the Court OVERRULES Defendant Santoyo and Robertson's objection in 13 this regard. 14 15 16 B. Plaintiff Exhausted All Administrative Remedies Available Properly In their objection to the Report, Defendants Santoyo and Robertson also argue

17 that "because plaintiff's appeal does not even mention the problems alleged in his FAC, 18 not to mention the individual defendants, it cannot be the basis for an exhaustion claim, 19 no matter how far plaintiff's appeal went or whether it was granted. (Doc. No. 49 at 20 6;citing Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009)). Additionally, 21 Defendants Santoyo and Robertson claim that "there was nothing on the face of 22 plaintiff's appeal that could give notice to prison officials of the possibility of a lawsuit." 23 (Id.) The Report did not specifically address whether Plaintiff gave sufficient notice of 24 his potential claims in his grievances. (Report at 8-11.) 25 The Supreme Court established that a prison's grievance process determines the 26 requisite level of detail a prisoner's grievance must be. Jones v. Bock, 549 U.S. 199, 217 27 (2007). When a prison's grievance process is silent on the matter, then "a grievance 28 suffices if it alerts the prison to the nature of the wrong for which redress is sought." Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (quoting Strong v. David, 297 -1009-CV-108 (RBB)

1 F.3d 646, 650 (7th Cir. 2002)). This standard furthers the purpose of a grievance, 2 which is "to alert the prison to a problem and to facilitate its resolution." Id. at "A 3 grievance need not include legal terminology or legal theories unless they are in some 4 way needed to provide notice of the harm being grieved." Id. 5 CDC Form 602 required Plaintiff to "Describe [the] Problem" and state the 6 "Action Requested." (Defs. Santoyo & Robertson's Mot. Dismiss Attach. #1 Decl. Bell Ex. 7 B at 1); see also Cal. Code Regs. tit. 15, § 3084.2(a). Plaintiff stated his problem as 8 follows: 9 10 11 12 13 14 (Doc. No. 25. at Exh. B.) On February 20, 2007, Plaintiff received a reply informing him that he was on the 15 16 oral surgery list to be seen by an outside provider. (Id.) Dissatisfied with the response, 4 17 Plaintiff filed a first formal level appeal on February 22, 2007, which stated the 18 following: 19 20 21 22 23 (Id.) 24 26 Under the applicable legal standard, this was sufficient notice. The crux of 25 Plaintiff's problem was the pain he was experienced based on the delay by defendants In terms of level of specificity, the appeal at the formal level is as broad as the 27 that at the informal level. The formal level appeal instructs the Plaintiff that if he is 28 "dissatisfied, explain below, attach supporting documents . . . and submit to the Institution/Parole Region Appeals Coordinator for processing within 15 days of receipt of response. (Doc. No. 25 at Exh. B.) -1109-CV-108 (RBB)
4

I have been patiently waiting since July of 2006 to be sent to an outside hospital to have my wisdom teeth removed. Enclosed is a Health Care Services Request Form I filled out in July of 2006, stating I am experiencing discomfort and pain. Due to the pain I am in, my case should have priority.

Action requested not granted in full. The "7" months I have already waited for the surgery is clearly an unacceptable amount of time to wait. Due to the pain and my inability to eat, my case should have priority status, therefore, the surgery should be done forthwith [sic].

1 in addressing his dental needs, which is precisely what Plaintiff complained of when he 2 referred to the delay as an "unacceptable of time to wait." Contrary to Defendants' 3 assertion, this Court's holding is in accordance with Griffin. 4 In Griffin, the Ninth Circuit determined that the plaintiff failed to exhaust 5 properly because "[h]e did not provide notice of the prison staff's alleged disregard of his 6 lower bunk assignments." Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009). In 7 contrast, Plaintiff complained that the length of the delay was unacceptable. Although 8 the prison administrators responding to Plaintiff's grievance may have "reasonably 9 concluded" that the re-scheduling of Plaintiff's surgery solved his problem, there was 10 nothing lacking in Plaintiff's grievance that could have "clarif[ied] the situation" or 11 allowed officials to take further "appropriate responsive measures." Griffin, 557 F.3d 12 at 1121. 13 15 16 III. 17 DISCUSSION - UNCONTESTED ISSUES As discussed above, Defendants Santoyo and Robertson only objected to the Accordingly, the Court OVERRULES Defendants Santoyo and Robertson's 14 objection to the Report and DENIES the motion to dismiss for a failure of exhaustion.

18 Report in regards to administrative exhaustion. Defendant Torchia did not file an 19 objection to the Report, nor did Plaintiff. As such, the Court ADOPTS the following: 20 21 22 23 24 25 26 27 28 4. 3. 2. 1. Plaintiff's Motion for Default Calling for Sanctions with respect to Defendant Torchia is DENIED. (Doc. No. 28.) The Court will not consider the argument raised in Defendant Torchia's Reply that Plaintiff failed to exhaust his administrative remedies. Plaintiff's Eighth Amendment Claim against Defendant Torchia is DISMISSED WITH PREJUDICE. Plaintiff's Eighth Amendment Claim against Defendants Santoyo and Robertson is DISMISSED WITHOUT PREJUDICE.

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09-CV-108 (RBB)

1 2 3 5 6 IV. 7

5.

Defendants Santoyo and Robertson's Motion to Dismiss Plaintiff's monetary claims against them in their official capacity is GRANTED. Their motion to dismiss based upon qualified immunity is DENIED WITHOUT PREJUDICE as premature.

4 (See Doc. No. 48 at 34­35.) CONCLUSION AND ORDER For the reasons cited above, and for the reasons expressed in the Report which

8 are incorporated herein by reference, the Court OVERRULES Plaintiff's Objection 9 (Doc. No. 49), ADOPTS the Report in its entirety (Doc. No. 48), GRANTS-IN10 PART and DENIES-IN-PART Defendants Santoyo and Robertson's motion to dismiss 11 (Doc. No. 16), GRANTS Defendant Torchia's motion to dismiss (Doc. No. 12), and 12 DENIES Plaintiff `s Motion for Default Calling for Sanctions (Doc. No. 28.) 13 In light of the foregoing, the Court also DENIES Defendants' motion for an 14 extension of time. (Doc. No. 13.) Should Plaintiff desire to file a Second Amended 15 Complaint, he must do so on or before October 29, 2010. 16 17 18 19 20 21 22 23 24 25 26 27 28 -1309-CV-108 (RBB)

IT IS SO ORDERED.

DATED: September 17, 2010 Hon. Thomas J. Whelan United States District Judge