Salas v. San Diego County Jail & Medical et al
Filing
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ORDER adopting re 34 Report and Recommendation and Dismissing Plaintiff's Second Amended Complaint as to All Defendants. Signed by Judge John A. Houston on 7/21/2017. (All non-registered users served via U.S. Mail Service)(fth)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LARRY SALAS
CDCR No. AY-1376
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Case No.: 16cv736-JAH (JLB)
ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION [DOC
NO. 34 ] AND DISMISSING
PLAINTIFF’S SECOND AMENDED
COMPLAINT [DOC NO. 6] AS TO
ALL DEFENDANTS
Plaintiff,
v.
MILISSA BURNS (ERRONEOUSLY
SUED AS “RN BURNS”)
Defendants
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BACKGROUND
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On March 28, 2016, Plaintiff Larry Salas, a state prisoner proceeding pro se
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(“Plaintiff”), filed a civil rights complaint against Defendants San Diego County Jail &
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Medical and Milissa Burns (“Burns”) (collectively, “Defendants”), alleging that Plaintiff
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was denied access to “adequate and competent medical treatment[,]” in violation of 42
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U.S.C. § 1983 (“§ 1983”). See Doc. No. 1. Plaintiff did not prepay the filing fee required
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16cv736-JAH (JLB)
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by 28 U.S.C. § 1914(a) at the time of filing. Instead, he filed a motion for leave to proceed
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in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On April 8,
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2016, the Court granted Plaintiff’s IFP motion, but dismissed Plaintiff’s Complaint for
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failing to state a claim. See Doc. No. 3.1
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On April 15, 2016, Plaintiff filed an amended Complaint (“FAC”), naming the
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Defendants in the original Complaint, as well as the San Diego Sheriff’s Department. See
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Doc. No. 4. On May 24, 2016, the FAC was dismissed for failure to state a claim. See Doc.
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No. 5. Plaintiff was granted forty-five days leave to file a second amended Complaint
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(“SAC”). On July 5, 2016, Plaintiff filed his SAC naming Doctor John Doe and RN Burns
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as defendants. See Doc. No. 6. On July 25, 2016, the Court dismissed the Complaint against
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Doctor John Doe for failure to state a claim. See Doc. No. 7. The Court also directed the
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U.S. Marshal to effect service of the SAC on Defendants RN Burns, San Diego County Jail
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& Medical, and San Diego Sheriff’s Department. Id. Summons was returned executed as
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to all Defendants on July 25, 2016. See Doc. No. 8. On August 19, 2016, Plaintiff filed two
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freestanding motions to appoint counsel and compel discovery, which were both denied on
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September 7, 2016. See Doc. Nos. 12, 14, 17, 18.
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On September 7, 2016, Defendant Burns filed the instant motion to dismiss the SAC
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with prejudice, contending that Plaintiff does not, and cannot, state a cognizable § 1983
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claim because (1) there are insufficient factual allegations to show that Plaintiff had a
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serious medical need; (2) there is no allegation that Burns knew of and disregarded an
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excessive risk to Plaintiff’s health and safety based on the existence of a serious medical
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condition; and (3) the case citations and legal arguments in Plaintiff’s Complaint cannot be
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admitted or denied by Defendant Burns, rendering them immaterial and inappropriate. See
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The Court found that the Complaint named improper Defendants, and contains “minimal allegations as
to whom [Plaintiff] claims violated his constitutional rights[, and]… contains no facts sufficient to show
that any individual acted with deliberate indifference… by knowing of and disregarding an[y] excessive
risk to his health and safety.” (internal citations omitted). The Court granted Plaintiff forty-five days
leave to amend the Complaint.
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Doc. No. 16 at 1. On December 5, 2016, Plaintiff filed an opposition to Defendant’s motion
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to dismiss the SAC. See Doc. No. 30.
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On April 7, 2017, pursuant to 28 U.S.C. § 636(b)(1), the Honorable Judge Jill L.
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Burkhart, United States Magistrate Judge, submitted a report and recommendation
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(“Report”) to this Court recommending that Plaintiff’s SAC be dismissed without prejudice
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and with leave to amend as to Defendant Burns for failure to state a claim, and denying
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Defendant Burns’ motion to strike case citations and legal argument. See Doc. No. 34.
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Judge Burkhart found that Plaintiff’s deliberate indifference claim was insufficiently plead.
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Id. Pursuant to Fed. R. Civ. P. 72(b)(2), objections to the Report were due no later than
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May 1, 2017. On May 1, 2017, Plaintiff filed a request for an extension of time to object
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to the Report. See Doc. No. 36. On May 3, 2017, the Court granted Plaintiff’s motion, and
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extended the deadline for filing objections to July 3, 2017. See Doc. No. 37. No objections
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were timely received. Accordingly, for the reasons set forth below, this Court ADOPTS
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the Magistrate Judge’s Report in its entirety, and DISMISSES Plaintiff’s SAC as to
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Defendant Burns.
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DISCUSSION
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The district court’s role in reviewing a magistrate judge’s report and
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recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28
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U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and
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recommendation, the district court “shall make a de novo determination of those portions
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of the report . . . to which objection is made,” and may “accept, reject, or modify, in whole
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or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
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636(b)(1); see also Fed. R. Civ. P. 72(b)(3).
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When no objections are filed, the district court is not required to review the
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magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000
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n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s report and
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recommendation] is only required when an objection is made”); United States v. Reyna–
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Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c)
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“makes it clear that the district judge must review the magistrate judge’s findings and
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recommendations de novo if objection is made, but not otherwise”). This rule of law is well
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established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11–cv–1416,
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2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety, and
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without review, a report and recommendation because neither party filed objections to the
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report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11–cv–2496,
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2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No. 08–cv–
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1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.).
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Here, the record reflects that no party filed objections to the Report. Thus, in the
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absence of any objections, the Court ADOPTS the Report. For the reasons stated in the
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Report, which is incorporated herein by reference, the SAC is DISMISSED WITH
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PREJUDICE as to Defendant Milissa Burns. The Clerk of Court shall enter judgment
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reflecting the foregoing.
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IT IS SO ORDERED.
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DATED: July 21, 2017
_________________________________
JOHN A. HOUSTON
United States District Judge
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16cv736-JAH (JLB)
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