Lomax v. Canlas et al

Filing 93

ORDER: The Report and Recommendation is ADOPTED in its entirety. (Doc. 91 ). The Motion to Dismiss is GRANTED. (Doc. 73 ). Plaintiff's claims against Defendant Lehv are dismissed without leave to amend. Signed by Judge William Q. Hayes on 5/22/2013. (Pro se plaintiff was electronically served.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PETER ROMERO LOMAX,
vs.

CASE NO. 10cv2226-WQHWMc

Plaintiff,

ORDER

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 (ECF No. 91)

22 filed by United States Magistrate Judge William McCurine recommending that the
23 Motion to Dismiss filed by Defendant Levi Lehv, M.D. be granted (ECF No. 73).
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BACKGROUND

On October 26, 2010, Plaintiff, formerly incarcerated at R.J. Donovan

26 Correctional Facility (“Donovan”) and proceeding pro se, initiated this action by filing
27 a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). In the Complaint,
28 Plaintiff alleges that Defendants violated his Eighth Amendment rights by failing to
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1 provide adequate medical care while Plaintiff was incarcerated at Donovan from 2007
2 to 2009.
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On October 19, 2012, Defendant Dr. Lehv filed the Motion to Dismiss,

4 contending that, inter alia, Plaintiff failed to state a claim against Dr. Lehv for
5 deliberate indifference to his medical needs under the Eighth Amendment. (ECF No.
6 73). On November 30, 2012, Plaintiff filed an opposition to the Motion to Dismiss.
7 (ECF No. 84). On December 14, 2012, Dr. Lehv filed a reply. (ECF No. 87).
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On March 28, 2013, the Magistrate Judge issued the Report and

9 Recommendation, recommending that Dr. Lehv’s Motion to Dismiss be granted, and
10 that Plaintiff’s claims against Dr. Lehv be dismissed with prejudice. (ECF No. 91).
11 The Report and Recommendation concluded:
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IT IS HEREBY ORDERED that no later than April 15, 2013, any
party to this action may file written objections with the Court.... 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.

15 Id. at 10 (citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)). The docket reflects
16 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

19 of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28
20 U.S.C. § 636(b). The district judge must “make a de novo determination of those
21 portions of the report ... to which objection is made,” and “may accept, reject, or
22 modify, in whole or in part, the findings or recommendations made by the magistrate.”
23 28 U.S.C. § 636(b). The district court need not review de novo those portions of a
24 report and recommendation to which neither party objects. See Wang v. Masaitis, 416
25 F.3d 992, 1000 n.13 (9th Cir. 2005); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th
26 Cir. 2003) (en banc).
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After reviewing the Report and Recommendation, the record in this case, and the

28 submissions of the parties regarding the claims against Dr. Lehv, the Court finds that
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1 the Magistrate Judge correctly set forth the applicable legal standards, and correctly
2 applied those standards to the allegations of Plaintiff’s Complaint. The Magistrate
3 Judge correctly found that Plaintiff has failed to state a plausible Eight Amendment
4 cause of action against Dr. Lehv.

For the reasons stated in the Report and

5 Recommendation, and based upon Plaintiff’s failure to object to the Report and
6 Recommendation, the Court further adopts the recommendation that Plaintiff’s claims
7 against Dr. Lehv should be dismissed without leave to amend.
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CONCLUSION
IT IS HEREBY ORDERED that the Report and Recommendation is ADOPTED

10 in its entirety. (ECF No. 91). The Motion to Dismiss is GRANTED. (ECF No. 73).
11 Plaintiff’s claims against Defendant Lehv are dismissed without leave to amend.
12 DATED: May 22, 2013
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WILLIAM Q. HAYES
United States District Judge

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