Lomax v. Canlas et al

Filing 58

ORDER: The Report and Recommendation (Doc. 43 ) is adopted in its entirety. The Motion to Dismiss Plaintiff's claims against Defendants Jayasundra, Franklin, Romero, Grannis, Cate, and Hernandez is granted with leave to amend. The Motion to Dis miss Plaintiff's claim for monetary damages against all defendants in their official capacities is granted with prejudice. No later than 60 days from the date of this Order, Plaintiff may file an amended complaint. If Plaintiff does not file an amended complaint within 60 days from the date of this Order, this case shall proceed as to the claims in the Complaint which remain after this Order. Signed by Judge William Q. Hayes on 2/9/2012. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PETER ROMERO LOMAX,

CASE NO. 10cv2226 WQH-WMc
Plaintiff,

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ORDER

vs.
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CANLAS; WHITEHEAD; FARINAS;
LEHV; CHOO; JAYASUNDARA; JOHN
LUBISICH; K.L. HAWTHORNE;
MATTHEW KATE; N. GRANNIS; E.
FRANKLIN; MEDICAL
AUTHORIZATION REVIEW
COMMITTEE; TYLER; R.
HERNANDEZ; SILVA; E. ROMERO; G.
CASSESI,
Defendants.

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20 HAYES, Judge:
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The matter before the court is the Report and Recommendation filed by United States

22 Magistrate Judge William McCurine recommending that the Motion to Dismiss filed by
23 Defendants Canlas, Whitehead, Choo, Jayasundara, Franklin, Tyler, Hernandez, Silva, and
24 Romero be granted. (ECF No. 43).
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BACKGROUND

On October 26, 2010, Plaintiff, a prisoner then incarcerated at R.J. Donovan

27 Correctional Facility (“Donovan”) and proceeding pro se, initiated this action by filing a civil
28 rights complaint pursuant to 42 U.S.C. § 1983 (“Complaint”). (ECF No. 1). Plaintiff also filed
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10cv2226-WQH-WMc

1 a motion to proceed in forma pauperis that was granted by the Court on December 7, 2010.
2 (ECF No. 4). In the Complaint, Plaintiff alleges that Defendants violated his Eighth
3 Amendment rights by failing to provide adequate medical care while Plaintiff was incarcerated
4 at Donovan from 2007 to 2009.
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Among other allegations in the Complaint, Plaintiff alleges that: Defendant

6 Jayasundara, nurse practitioner, performed unauthorized surgery on Plaintiff without providing
7 pain medication; Defendant Romero, health care manager, made false statements in a staff
8 response report; Defendants Grannis and Franklin, Chief of Inmate Appeals and Appeals
9 Coordinator, respectively, denied Plaintiff’s right to redress of his emergency grievances; and
10 Defendants Cate and Hernandez, Director of the California Department of Corrections and
11 Rehabilitation and Warden of Donovan, respectively, disregarded Plaintiff’s pleas for
12 assistance regarding his medical treatment.
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On April 21, 2011, Defendants Canlas, Whitehead, Choo, Jayasundara, Franklin, Tyler,

14 Hernandez, Silva, and Romero filed a Motion to Dismiss. (ECF No. 24). Defendants contend
15 that Plaintiff fails to state a claim against Defendant Jayasundara for deliberate indifference
16 to medical needs under the Eighth Amendment; Plaintiff fails to state a claim against
17 Defendants Franklin, Romero, and Grannis under the Fourteenth Amendment due process
18 clause with respect to plaintiff’s inmate appeal; Plaintiff fails to state a claim against
19 Defendants Hernandez and Cate for supervisory liability; and further that Plaintiff cannot sue
20 any of the Defendants in their official capacities. On June 9, 2011, Plaintiff filed an
21 opposition. (ECF No. 29). On July 1, 2011, Defendants filed a reply. (ECF No. 36).
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On December 9, 2011, the Magistrate Judge issued a Report and Recommendation

23 recommending that the Motion to Dismiss be granted. (ECF No. 43). The Report and
24 Recommendation concluded:
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IT IS HEREBY ORDERED that no later than January 6, 2012, any party
to this action may file written objections with the Court....

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IT IS FURTHER ORDERED that any reply to the objections shall be
filed with the Court and served on all parties no later than January 13, 2012.
The parties are advised that failure to file objections within the specified time
may waive the right to raise those objections on appeal of the Court’s order.
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1 (ECF No. 43 at 15, citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)). The docket reflects
2 that no objections to the Report and Recommendation have been filed.
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REVIEW OF THE REPORT AND RECOMMENDATION
The duties of the district court in connection with a report and recommendation of a

5 magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b).
6 The district judge must “make a de novo determination of those portions of the report ... to
7 which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings
8 or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court need not
9 review de novo those portions of a report and recommendation to which neither party objects.
10 See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d
11 1114, 1121-22 (9th Cir. 2003) (en banc).
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After reviewing the Report and Recommendation, the record in this case, and the

13 submissions of the parties regarding the claims against Defendant Jayasundara, the Court finds
14 that the Magistrate Judge correctly stated that “mere claims of ‘indifference,’ ‘negligence,’ or
15 ‘medical malpractice’ do not support a claim under § 1983.” (ECF No. 43 at 9, citing
16 Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir.1980)). The Magistrate Judge correctly
17 concluded that, “[a]lthough plaintiff’s allegations suggest Jayasundara may have acted
18 negligently, something more than negligence, or gross negligence, or medical malpractice is
19 required for a violation of the Eighth Amendment.” Id. at 10, citing Toguchi v. Chung, 391
20 F.3d 1051, 1060 (9th Cir. 2004). The Magistrate Judge correctly concluded that “the
21 Complaint fails to set forth facts to demonstrate Jayasundara acted with a deliberate
22 indifference to plaintiff’s medical needs.” Id.
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The Magistrate Judge correctly stated that “[a] dismissal under Rule 12(b)(6) is

24 generally proper only where there ‘is no cognizable legal theory or an absence of sufficient
25 facts alleged to support a cognizable legal theory.’” Id. at 10, citing Navarro v. Block, 250 F.3d
26 729, 732 (9th Cir. 2001). Regarding the claims against Defendant Romero, the Magistrate
27 Judge correctly found that, “Plaintiff neither specifies what false things Romero wrote in his
28 response nor identifies the issues Romero failed to address.” Id. at 11. The Magistrate Judge
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1 correctly concluded that Plaintiff’s claims against Defendant Romero “lack the specificity and
2 factual content required for a cognizable claim.” Id. Regarding the claims against Defendants
3 Grannis and Franklin, the Magistrate Judge correctly found that the grievance forms and
4 inmate appeals submitted to these Defendants “contain general grievances regarding the delay
5 of surgery.” Id. at 12. The Magistrate Judge correctly concluded that Plaintiff “failed to allege
6 any facts to indicate these defendants intentionally denied, delayed, or interfered with his
7 medical treatment” and that Plaintiff “failed to state a cognizable Eighth Amendment claim
8 against Grannis and Franklin.” Id. The Magistrate Judge correctly concluded that, “[t]o the
9 extent plaintiff raises a Fourteenth Amendment due process claim against Grannis, Franklin,
10 and Romero... Plaintiff fails to state a legally cognizable claim because he does not allege any
11 facts in support thereof with sufficient specificity.” Id.
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Regarding the claims against Defendant Hernandez and Cate, the Magistrate Judge

13 correctly stated that, “a supervisor may be liable only if he or she is personally involved in the
14 constitutional deprivation, or if there is a sufficient causal connection between the supervisor's
15 wrongful conduct and the constitutional violation.” (Id. at 13, citing Jones v. Williams, 297
16 F.3d 930, 937 (9th Cir. 2002); MacKinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995)).
17 The Magistrate Judge correctly concluded that Plaintiff “failed to allege any facts to suggest
18 Cate and Hernandez ‘participated in or directed the violations, or knew of the violations and
19 failed to act to prevent them.’” (Id. at 14, citing Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
20 1989)).
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Regarding Plaintiff’s prayer for monetary damages and injunctive relief, the Magistrate

22 Judge correctly stated that, “[w]hile the Eleventh Amendment bars a prisoner's section 1983
23 claims against state actors sued in their official capacities, it does not bar damage actions
24 against state officials in their personal capacities. In addition, it does not bar actions against
25 state officers in their official capacities if the plaintiff seeks injunctive relief.” Id. (citations
26 omitted). The Magistrate Judge correctly concluded that, “[a]lthough plaintiff is foreclosed
27 from seeking money damages against defendants in their official capacity, he may still seek
28 injunctive relief against the defendants in their official capacity as well as money damages
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1 against the defendants in their individual capacity.” Id.
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CONCLUSION
IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 43) is

4 ADOPTED in its entirety.

The Motion to Dismiss Plaintiff’s claims against Defendants

5 Jayasundra, Franklin, Romero, Grannis, Cate, and Hernandez is GRANTED with leave to amend.
6 The Motion to Dismiss Plaintiff’s claim for monetary damages against all defendants in their
7 official capacities is GRANTED with prejudice.
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No later than sixty (60) days from the date of this Order, Plaintiff may file an amended

9 complaint. If Plaintiff files an amended complaint, the pleading must be complete in itself and
10 may not incorporate by reference any prior pleading. Any defendant not named, and all claims
11 not re-alleged, will be deemed waived. If Plaintiff does not file an amended complaint within
12 60 days from the date of this Order, this case shall proceed as to the claims in the Complaint
13 which remain after this Order.
14 DATED: February 9, 2012
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WILLIAM Q. HAYES
United States District Judge

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