Dragasits v. Yu, et al

Filing 47

ORDER: (1) Approving and Adopting Report & Recommendation in Full (ECF No. 46 ); (2) Granting Defendants' Motion to Dismiss (ECF No. 36 ); (3) Dismissing Defendants Walker, Glynn, Roberts and Lewis With Prejudice; and (4) Dismissing Claims Against Defendant Yu Without Prejudice and Granting Leave to Amend. Signed by Judge Cynthia Bashant on 7/27/2018.(All non-registered users served via U.S. Mail Service)(jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STEPHEN DRAGASITS,

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Case No. 16-cv-01998-BAS-JLB
Plaintiff,

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ORDER:

v.

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(1) APPROVING AND
ADOPTING REPORT
& RECOMMENDATION
IN FULL

J. YU, et al.

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Defendants.

[ECF No. 46];
(2) GRANTING DEFENDANTS’
MOTION TO DISMISS

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[ECF No. 36];

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(3) DISMISSING DEFENDANTS
WALKER, GLYNN,
ROBERTS, AND LEWIS WITH
PREJUDICE;

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AND

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(4) DISMISSING CLAIMS
AGAINST DEFENDANT YU
WITHOUT PREJUDICE AND
GRANTING LEAVE TO
AMEND

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I.

BACKGROUND

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Plaintiff Stephen Dragasits is a prisoner incarcerated at the Richard J. Donovan

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Correctional Facility in San Diego, California. Proceeding pro se and in forma
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pauperis, Plaintiff initiated this civil action pursuant to 42 U.S.C. § 1983 on August

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8, 2016 related to his repeated requests for a lower bunk as well as his complaints

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regarding several other medical issues. He alleged that the State of California, the

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Facility, several healthcare officials, and a Deputy Director of the California

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Department of Corrections and Rehabilitation’s (“CDCR”) Health Care Services

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Appeals Branch violated his Eighth Amendment, Fourteenth Amendment, and

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California state law rights to proper medical treatment and due process as a part of

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these denials. (ECF No. 1.)

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The pleadings in this case have undergone multiple rounds of review. Several

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Defendants and Plaintiff’s Fourteenth Amendment claims asserted in the original

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complaint were dismissed pursuant to a mandatory screening under 28 U.S.C. §§

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1915 and 1915A by then presiding Judge Roger Benitez. (ECF No. 5.) After that

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screening, remaining Defendants Dr. Jin Yu, Dr. R. Walker, Dr. S. Roberts, Dr. M.

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Glynn, and CDCR Deputy Director J. Lewis moved to dismiss the remaining claims

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against them. (ECF No. 12.) Upon a Recommendation and Report (R&R) issued by

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Magistrate Judge Jill Burkhardt in July 2017 (ECF No. 21) and over an objection by

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Plaintiff (ECF No. 25), Judge Benitez (1) dismissed without leave to amend

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Plaintiff’s Eighth Amendment claims against Defendants Walker, Roberts, Glynn,

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and Lewis relating to denials of Plaintiff’s healthcare appeals and (2) dismissed with

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leave to amend Plaintiff’s Eighth Amendment claims for deliberate indifference

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against Defendants Yu, Walker, Glynn, and Lewis and Plaintiff’s state law claims for

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medical negligence and malpractice. (ECF No. 26.) Thereafter, Plaintiff filed a First

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Amended Complaint (“FAC”) on October 10, 2017. (ECF No. 27.)

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The remaining Defendants in this case have once again moved to dismiss all

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claims against them. (ECF No. 36.) Before the Court is Judge Burkhardt’s thirty-

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one page R&R, which extensively analyzes Plaintiff’s claims in the First Amended

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Complaint and the 959 pages of exhibits incorporated into the FAC. (ECF No. 46.)

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Judge Burkhardt recommends that this Court grant Defendants’ motion to dismiss in
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its entirety. For the reasons herein, the Court (1) approves and adopts the R&R in

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full, (2) grants Defendants’ motion to dismiss, and (3) grants Plaintiff leave to amend

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the pleadings solely as to Defendant Yu.

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II.

LEGAL STANDARD

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The Court reviews de novo those portions of an R&R to which objections are

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made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or

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in part, the findings or recommendations made by the magistrate judge.” Id. “The

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statute makes it clear,” however, “that the district judge must review the magistrate

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judge’s findings and recommendations de novo if objection is made, but not

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otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

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banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district

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court had no obligation to review the magistrate judge’s report). “Neither the

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Constitution nor the statute requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328

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F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district.

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See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo

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review of a[n] R & R is only required when an objection is made to the R & R.”);

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Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting

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report in its entirety without review because neither party filed objections to the

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report despite the opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d

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1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

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III.

DISCUSSION

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In this case, the deadline for filing objections to the R&R was July 19, 2018.

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(ECF No. 46 at 31.) However, no objections have been filed, and neither party has

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requested additional time to do so. Consequently, the Court may adopt the R&R on

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that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, having conducted

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a de novo review of the FAC (ECF No. 27), Defendants’ motion to dismiss (ECF No.
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36), Plaintiff’s opposition (ECF No. 40), and the R&R (ECF No. 46), this Court

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concludes that each of Judge Burkhardt’s recommendations is amply supported and

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adopts them.

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A.

Eighth Amendment Claims Against Defendant Yu

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First, the R&R properly recommends dismissal of Plaintiff’s Eighth

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Amendment claims against Defendant Yu. As the R&R observes, prison officials

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violate the Eighth Amendment’s proscription against cruel and unusual punishment

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only when they act with deliberate indifference to an inmate’s serious medical needs.

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See Estelle v. Gamble, 429 U.S. 97, 106 (1976). To satisfy the deliberate indifference

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requirement, a prison official must know of and disregard an excessive risk to the

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inmate’s health and safety. Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2002)

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(citing Gibson v. Cty. of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). Inadequate

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treatment due to malpractice, gross negligence, and differences in judgment between

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a prisoner and prison official regarding an appropriate medical diagnosis and course

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of treatment do not amount to a constitutional violation. See Estelle, 429 U.S. at 106;

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Toguchi, 391 F.3d at 1060; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989)

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Based on an extensive, thorough, and sound analysis of the FAC and the

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documentary record Plaintiff submitted with the FAC, the R&R correctly concludes

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that Plaintiff has failed to state an Eighth Amendment against Dr. Yu regarding an

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alleged failure to provide, or a delay in the provision of, medical care on the basis of:

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(1) Dr. Yu’s alleged knowledge of Plaintiff’s medical history and complaints of pain,

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(2) Dr. Yu’s alleged knowledge of Plaintiff’s prior falls from his top bunk, (3) Dr.

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Yu’s alleged knowledge that Plaintiff’s prison cell lacked a ladder, (4) Dr. Yu’s

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alleged knowledge that Plaintiff’s prescribed medication would cause Plaintiff to fall

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off the top bunk, (5) Dr. Yu’s (and the remaining Defendants) alleged disregard of

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the lower bunk policy applicable to the prison, and (6) Dr. Yu’s alleged disregard of

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prior medical opinions from different medical providers recommending a lower bunk

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for Plaintiff. (ECF No. 46 at 9–24.)
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B.

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Second, the R&R properly recommends dismissal of Plaintiff’s claims against

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Defendants Walker, Glynn, Lewis, and Robert. (ECF No. 46 at 24–27.) As the R&R

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correctly observes, under Section 1983, “[a] supervisor may be liable only if (1) he

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or she is personally involved in the constitutional deprivation, or (2) there is a

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‘sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.’” Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013)

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(quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). There is no vicarious

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liability for civil rights violations. See Ashcroft v. Iqbal, 556 U.S. 662, 676–76

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Claims Against Supervisory Defendants

(2007); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

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As an initial matter, the R&R correctly concludes that Plaintiff cannot reassert

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claims that were already dismissed with prejudice by prior orders. Because the

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Eighth Amendment claim against Defendant Roberts was previously dismissed with

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prejudice by Judge Benitez (ECF No. 26 at 5), Plaintiff’s allegations in the FAC

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against Roberts are improper and that claim remains dismissed. (ECF No. 46 at 26.)

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Plaintiff’s reasserted claims against Defendants Walker, Glynn, and Lewis due to

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their review of Plaintiff’s healthcare appeals are also improper because such claims

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were also dismissed with prejudice by Judge Benitez. (ECF No. 26 at 5; ECF No. 46

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at 27.)

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With respect to the claims against the supervisory Defendants that Plaintiff

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was permitted to amend, the R&R correctly concludes that the FAC fails to cure

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previously identified deficiencies. Although Plaintiff alleges that Defendants Walker

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and Roberts personally participated in the Eighth Amendment violations against

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Plaintiff, Plaintiff once more has failed to allege sufficient factual allegations to

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support this assertion. (ECF No. 46 at 24–25.) The R&R further correctly concludes

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that Plaintiff otherwise fails to provide sufficient factual allegations to support

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Section 1983 claims against Defendants Walker, Glynn, and Lewis in their

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supervisory roles. Plaintiff has failed to state underlying constitutional violations by
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Defendants Yu, Walker, or Roberts and thus he cannot establish a causal connection

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between the supervisory Defendants’ conduct and a constitutional violation. (Id. at

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Knowles, 07-cv-1343-JLS (POR), 2009 WL 1675863, at *4 (S.D. Cal. June 15,

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2009)). Dismissal of the claims against these Defendants is thus proper.

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C.

Leave to Amend

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Third, the R&R properly recommends granting Plaintiff a final opportunity to

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amend the allegations against Defendant Yu, but denying further amendment as to

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any other Defendant. (ECF No. 46 at 27–29.) As the R&R correctly observes, a

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court should grant leave to amend pursuant to Federal Rule of Civil Procedure

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15(a)(2), when justice so requires “even if no request to amend the pleading was

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made, unless it determines that the pleading could not possibly be cured by the

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allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en

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banc) (citation omitted).

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With respect to Defendant Yu, the R&R observes that Plaintiff has suggested

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in his opposition to Defendants’ motion to dismiss that Defendant Yu “was taking

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away Plaintiff’s lower bunk chrono in retaliation” for Plaintiff’s filing of a grievance.

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(ECF No. 46 at 28 (citing ECF No. 40 at 26).) Plaintiff further contends that after he

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filed his grievance, “Defendant Yu would no longer discuss or report anything

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Plaintiff had to say, and began to dismiss him from his office and ignored Plaintiff

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from anything else he had to say.” (Id.) The R&R implicitly construes this as a

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request for leave to amend and determines it is not absolutely certain that “any

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attempt to amend Plaintiff’s claims against Defendant Yu would be futile[.]” (ECF

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No. 46 at 28.) Although this Court has concerns with the fact that Plaintiff has never

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alleged retaliation by Defendant Yu in the two years this case has been pending and

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only did so in response to a second motion to dismiss, the Court agrees that the

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prudent course is to permit Plaintiff, as a pro se litigant, an additional opportunity to

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amend his allegations regarding Defendant Yu. See, e.g., Haines v. Kerner, 404 U.S.
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519, 520 (1972) (“however inartfully pleaded,” allegations by a pro se plaintiff must

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be held “to less stringent standards than formal pleadings drafted by lawyers.”);

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Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (courts should construe pro se

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pleadings liberally and afford the plaintiff any benefit of the doubt).

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With respect to Defendants Walker, Glynn, Roberts, and Lewis, the R&R

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correctly recommends that all claims against them should be dismissed with

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prejudice because amendment would be futile. (ECF No. 46 at 28–29.) As the R&R

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properly concludes, Plaintiff (1) has been provided with thorough notice of the

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deficiencies in his pleadings against these Defendants and has failed to cure them in

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the FAC and (2) the extensive documentary record Plaintiff has submitted as part of

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his pleadings shows that “he cannot allege any set of facts that would constitute a

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valid and sufficient claim” against them. (Id. at 29.) Accordingly, the Court will not

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permit further amendment of the claims against these Defendants and will not

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entertain any further attempts by Plaintiff to reassert claims against them.

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D.

State Law Claims

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As a final matter, the R&R correctly concludes that because the FAC fails to

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state any federal claims, the Court should decline to exercise supplemental

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jurisdiction over Plaintiff’s multiple California state law claims. (ECF No. 46 at 30–

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31.) Because the parties in this case are all citizens of California, the federal claim

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provided the only basis for federal subject matter jurisdiction. (ECF No. 21 at 33.)

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Under 28 U.S.C. § 1367(a), a court may decline to exercise supplemental jurisdiction

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when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

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§ 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated

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before trial, the balance of factors . . . will point toward declining to exercise

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jurisdiction over the remaining state law claims.” Acri v. Varian Assocs., Inc., 114

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F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting Carnegie-Mellon Univ. v. Cohill,

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484 U.S. 343, 350 n.7 (1988)). This is the usual case. This Court, like Judge Benitez

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(ECF No. 26), adopts the second R&R’s recommendation to decline supplemental
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jurisdiction over the state law claims given that Plaintiff’s federal claims are subject

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to dismissal.

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IV.

CONCLUSION & ORDER

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For the foregoing reasons, the Court HEREBY ORDERS that:

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The Court APPROVES AND ADOPTS the R&R (ECF No. 46) in full.

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2.

The Court GRANTS Defendants’ motion to dismiss (ECF No. 36) as

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follows:
a.

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The Court DISMISSES Plaintiff’s Eighth Amendment and

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Section 1983 claims against all Defendants and DECLINES

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supplemental jurisdiction over Plaintiff’s state law claims

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pursuant to 28 U.S.C. § 1367(c).
b.

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The Court DISMISSES WITH PREJUDICE Defendants

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Walker, Glynn, Roberts, and Lewis. The Court will not entertain

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any new allegations or claims by Plaintiff against these

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Defendants.
c.

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against Defendant Yu.

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The Court DISMISSES WITHOUT PREJUDICE the claims

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The Court GRANTS Plaintiff leave to amend the allegations against

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Defendant Yu only. Plaintiff may file his motion and proposed amended complaint

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no later than August 31, 2018. If Plaintiff fails to meet the August 31, 2018

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deadline, the Court will instruct the Clerk of the Court to close the case.

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Any amended complaint Plaintiff files must comply with the requirements of

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Local Civil Rule 8.2 governing complaints filed by prisoners under § 1983, which

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provides:

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“Additional pages not to exceed fifteen (15) in number may be included

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with the court approved form complaint, provided the form is completely

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filled in to the extent applicable in the particular case. The court approved

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form and any additional pages submitted must be written or typed on only
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one side of a page and the writing or typewriting must be no smaller in

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size than standard elite type. Complaints tendered to the clerk for

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filing which do not comply with this rule may be returned by the

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clerk, together with a copy of this rule, to the person tendering said

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complaint.” S.D. Cal. Civ. L.R. 8.2 (emphasis added).

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IT IS SO ORDERED.

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DATED: July 27, 2018

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