Salas v. San Diego County Jail & Medical et al

Filing 41

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 LARRY SALAS CDCR No. AY-1376 13 14 15 16 17 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 18 19 20 21 22 23 BACKGROUND 24 On March 28, 2016, Plaintiff Larry Salas, a state prisoner proceeding pro se 25 (“Plaintiff”), filed a civil rights complaint against Defendants San Diego County Jail & 26 Medical and Milissa Burns (“Burns”) (collectively, “Defendants”), alleging that Plaintiff 27 was denied access to “adequate and competent medical treatment[,]” in violation of 42 28 U.S.C. § 1983 (“§ 1983”). See Doc. No. 1. Plaintiff did not prepay the filing fee required 1 16cv736-JAH (JLB) 1 by 28 U.S.C. § 1914(a) at the time of filing. Instead, he filed a motion for leave to proceed 2 in forma pauperis (“IFP”), pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. On April 8, 3 2016, the Court granted Plaintiff’s IFP motion, but dismissed Plaintiff’s Complaint for 4 failing to state a claim. See Doc. No. 3.1 5 On April 15, 2016, Plaintiff filed an amended Complaint (“FAC”), naming the 6 Defendants in the original Complaint, as well as the San Diego Sheriff’s Department. See 7 Doc. No. 4. On May 24, 2016, the FAC was dismissed for failure to state a claim. See Doc. 8 No. 5. Plaintiff was granted forty-five days leave to file a second amended Complaint 9 (“SAC”). On July 5, 2016, Plaintiff filed his SAC naming Doctor John Doe and RN Burns 10 as defendants. See Doc. No. 6. On July 25, 2016, the Court dismissed the Complaint against 11 Doctor John Doe for failure to state a claim. See Doc. No. 7. The Court also directed the 12 U.S. Marshal to effect service of the SAC on Defendants RN Burns, San Diego County Jail 13 & Medical, and San Diego Sheriff’s Department. Id. Summons was returned executed as 14 to all Defendants on July 25, 2016. See Doc. No. 8. On August 19, 2016, Plaintiff filed two 15 freestanding motions to appoint counsel and compel discovery, which were both denied on 16 September 7, 2016. See Doc. Nos. 12, 14, 17, 18. 17 On September 7, 2016, Defendant Burns filed the instant motion to dismiss the SAC 18 with prejudice, contending that Plaintiff does not, and cannot, state a cognizable § 1983 19 claim because (1) there are insufficient factual allegations to show that Plaintiff had a 20 serious medical need; (2) there is no allegation that Burns knew of and disregarded an 21 excessive risk to Plaintiff’s health and safety based on the existence of a serious medical 22 condition; and (3) the case citations and legal arguments in Plaintiff’s Complaint cannot be 23 admitted or denied by Defendant Burns, rendering them immaterial and inappropriate. See 24 25 26 27 28                                                 1 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. 2 16cv736-JAH (JLB) 1 Doc. No. 16 at 1. On December 5, 2016, Plaintiff filed an opposition to Defendant’s motion 2 to dismiss the SAC. See Doc. No. 30. 3 On April 7, 2017, pursuant to 28 U.S.C. § 636(b)(1), the Honorable Judge Jill L. 4 Burkhart, United States Magistrate Judge, submitted a report and recommendation 5 (“Report”) to this Court recommending that Plaintiff’s SAC be dismissed without prejudice 6 and with leave to amend as to Defendant Burns for failure to state a claim, and denying 7 Defendant Burns’ motion to strike case citations and legal argument. See Doc. No. 34. 8 Judge Burkhart found that Plaintiff’s deliberate indifference claim was insufficiently plead. 9 Id. Pursuant to Fed. R. Civ. P. 72(b)(2), objections to the Report were due no later than 10 May 1, 2017. On May 1, 2017, Plaintiff filed a request for an extension of time to object 11 to the Report. See Doc. No. 36. On May 3, 2017, the Court granted Plaintiff’s motion, and 12 extended the deadline for filing objections to July 3, 2017. See Doc. No. 37. No objections 13 were timely received. Accordingly, for the reasons set forth below, this Court ADOPTS 14 the Magistrate Judge’s Report in its entirety, and DISMISSES Plaintiff’s SAC as to 15 Defendant Burns. 16 DISCUSSION 17 The district court’s role in reviewing a magistrate judge’s report and 18 recommendation is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 19 U.S.C. § 636(b)(1). When a party objects to the magistrate judge’s report and 20 recommendation, the district court “shall make a de novo determination of those portions 21 of the report . . . to which objection is made,” and may “accept, reject, or modify, in whole 22 or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 23 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). 24 When no objections are filed, the district court is not required to review the 25 magistrate judge’s report and recommendation. See Wang v. Masaitis, 416 F.3d 992, 1000 26 n. 13 (9th Cir. 2005) (stating that “de novo review of a [magistrate judge’s report and 27 recommendation] is only required when an objection is made”); United States v. Reyna– 28 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that 28 U.S.C. § 636(b)(1)(c) 3 16cv736-JAH (JLB) 1 “makes it clear that the district judge must review the magistrate judge’s findings and 2 recommendations de novo if objection is made, but not otherwise”). This rule of law is well 3 established within the Ninth Circuit and this district. See Hasan v. Cates, No. 11–cv–1416, 4 2011 WL 2470495 (S.D. Cal. June 22, 2011) (Whelan, T.) (adopting in its entirety, and 5 without review, a report and recommendation because neither party filed objections to the 6 report despite having the opportunity to do so); accord Ziemann v. Cash, No. 11–cv–2496, 7 2012 WL 5954657 (S.D. Cal. Nov. 26, 2012) (Benitez, R.); Rinaldi v. Poulos, No. 08–cv– 8 1637, 2010 WL 4117471 (S.D. Cal. Oct. 18, 2010) (Lorenz, J.). 9 Here, the record reflects that no party filed objections to the Report. Thus, in the 10 absence of any objections, the Court ADOPTS the Report. For the reasons stated in the 11 Report, which is incorporated herein by reference, the SAC is DISMISSED WITH 12 PREJUDICE as to Defendant Milissa Burns. The Clerk of Court shall enter judgment 13 reflecting the foregoing. 14 IT IS SO ORDERED. 15 16 17 18 19 DATED: July 21, 2017 _________________________________ JOHN A. HOUSTON United States District Judge 20 21 22 23 24 25 26 27 28 4 16cv736-JAH (JLB)

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