Brown v. Gore et al

Filing 211

ORDER: (1) Adopting 186 Report and Recommendation; (2) Denying 143 Motion to Strike; (3) Granting 144 Motion to Dismiss; and (4) Denying Motion to Strike and Granting Alternative Motion to Dismiss (Doc. 146 ). Plaintiff's request f or leave to amend his claim for deliberate indifference to serious medical needs against Cawagas and Serra is Granted. If Plaintiff wishes to file a second amended complaint to cure the deficiencies of this claim (and only this claim), Plaintiff shall do so on orbefore August 8, 2014. Signed by Judge Gonzalo P. Curiel on 7/15/2014. (All non-registered users served via U.S. Mail Service)(srm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT MARK BROWN, II, 12 Plaintiff, 13 14 v. 15 16 17 18 19 DEPUTY #1, Deputy Sheriff, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 12-cv-1938-GPC-BGS ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, (ECF NO. 186); (2) DENYING MOTION TO STRIKE, (ECF NO. 143); (3) GRANTING MOTION TO DISMISS, (ECF NO. 144); (4) DENYING MOTION TO STRIKE AND GRANTING ALTERNATIVE MOTION TO DISMISS, (ECF NO. 146) 20 21 On August 6, 2012, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, 22 alleging Defendants violated Plaintiff’s Eighth Amendment right to be free from cruel 23 and unusual punishment when San Diego County Sheriff’s deputies assaulted Plaintiff 24 while in custody. (ECF No. 1.) The case was assigned to Magistrate Judge Skomal for 25 disposition on report and recommendation. 26 On October 15, 2013, Plaintiff filed a first amended complaint (“FAC”), 27 asserting a new cause of action for deliberate indifference to serious medical needs 28 against newly named defendants Clarissa Cawagas, RN (“Cawagas”) and John Serra, 12-cv-1938-GPC-BGS 1 MD (“Serra”). (ECF No. 117.) 2 On November 21, 2013, Cawagas and Serra filed a motion pursuant to Federal 3 Rule of Civil Procedure 12(f) to strike Plaintiff’s allegations against them because, 4 while Plaintiff was granted leave to amend his Complaint, Plaintiff was not granted 5 leave to assert claims against either Cawagas or Serra for infringement of Plaintiff’s 6 right to adequate medical care. (ECF No. 143.) 7 Also on November 21, 2013, Cawagas filed a motion pursuant to Federal Rule 8 of Civil Procedure 12(b)(6) to dismiss Plaintiff’s claim against her for failure to state 9 a claim for deliberate indifference to Plaintiff’s serious medical needs. (ECF No. 144.) 10 On the same day, Serra filed a motion pursuant to Federal Rule of Civil Procedure 12(f) 11 to strike Plaintiff’s allegations against Serra or, in the alternative, to dismiss Plaintiff’s 12 allegations against Serra for failure to state claim. (ECF No. 146.) 13 14 Plaintiff filed oppositions to the foregoing motions. (ECF Nos. 148, 151.) Plaintiff requests leave to amend his FAC. 15 On March 27, 2014, Magistrate Judge Skomal issued a report and 16 recommendation (“Report”), recommending Plaintiff’s claim for deliberate indifference 17 be dismissed as to Cawagas and Serra with leave to amend, and that Cawagas’ and 18 Serra’s motions to strike be denied. (ECF No. 186.) Magistrate Judge Skomal set an 19 initial deadline of April 18, 2014, to file any objections to the Report, (id.), and this 20 Court extended the objection deadline to June 27, 2014, (ECF No. 210). To date, the 21 Court has received no objections to the Report. 22 A district judge’s role in reviewing a magistrate judge’s report and 23 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, a district 24 judge “shall make a de novo determination of those portions of the report . . . to which 25 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings 26 or recommendations made by the magistrate [judge].” When no objections are filed, 27 the Court may assume the correctness of the magistrate judge’s findings of fact and 28 decide the motion on the applicable law. Campbell v. United States Dist. Ct., 501 F.2d 2 12-cv-1938-GPC-BGS 1 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2 2001). Under such circumstances, the Ninth Circuit has held that “a failure to file 3 objections only relieves the trial court of its burden to give de novo review to factual 4 findings; conclusions of law must still be reviewed de novo.” Barilla v. Ervin, 886 5 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 6 F.2d 452, 454 (9th Cir. 1983)). 7 Because no objections to the Report have been filed, the Court assumes the 8 correctness of Magistrate Judge Skomal’s factual findings and adopts them in full. The 9 Court has conducted a de novo review of Magistrate Judge Skomal’s legal conclusions 10 and finds the Report provides a cogent analysis of Cawagas and Serra’s Motion to 11 Strike, Cawagas’ Motion to Dismiss, and Serra’s Motion to Strike or in the Alternative 12 Motion to Dismiss. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The Report, (ECF No. 186), is ADOPTED in its entirety; 15 2. Cawagas and Serra’s Motion to Strike, (ECF No. 143), is DENIED; 16 3. Cawagas’ Motion to Dismiss, (ECF No. 144), is GRANTED; 17 4. Serra’s Motion to Strike or in the Alternative Motion to Dismiss, (ECF 18 No. 146), is DENIED as to the Motion to Strike and GRANTED as to the 19 Motion to Dismiss; 20 5. Plaintiff’s request for leave to amend his claim for deliberate indifference 21 to serious medical needs against Cawagas and Serra is GRANTED. If 22 Plaintiff wishes to file a second amended complaint to cure the 23 deficiencies of this claim (and only this claim), Plaintiff shall do so on or 24 before August 8, 2014. 25 26 27 DATED: July 15, 2014 HON. GONZALO P. CURIEL United States District Judge 28 3 12-cv-1938-GPC-BGS

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