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