Thomas v. Rodriguez et al
Filing
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ORDER Adopting re 41 Report and Recommendation; Overruling Plaintiff's Objections; Granting 37 Defendants' Motion to Dismiss without Leave to Amend. the Court GRANTS Defendants motion to dismiss WITHOUT LEAVE TO AMEND, (Doc. No. 37), ADOPTS Magistrate Judge Jan M. Adler's R&R in its entirety, (Doc. No. 41), and OVERRULES Plaintiffs objections, (Doc. No. 45). The Clerk of Court is DIRECTED to CLOSE this case. Signed by Judge Anthony J. Battaglia on 9/4/2018. (All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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SAMMY THOMAS,
Case No.: 16-cv-2211-AJB-JMA
Plaintiff,
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ORDER:
v.
J. RODRIGUEZ, Correctional Officer,
and P. COLIO, Correctional Officer,
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(1) ADOPTING THE REPORT AND
RECOMMENDATION;
Defendants.
(2) OVERRULING PLAINTIFF’S
OBJECTIONS;
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(3) GRANTING DEFENDANTS’
MOTION TO DISMISS WITHOUT
LEAVE TO AMEND; AND
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(4) CLOSING THIS CASE
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(Doc. Nos. 36, 37, 41, 45)
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On March 29, 2018, Magistrate Judge Jan M. Adler issued a Report and
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Recommendation (“R&R”) on Defendants J. Rodriguez and P. Colio’s (collectively
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referred to as “Defendants”) motion to dismiss. (Doc. Nos. 37, 41.) On June 29, 2018, after
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granting him an extension of time to file, Plaintiff Sammy Thomas (“Plaintiff”) filed his
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objection to the R&R. (Doc. No. 45.) As will be explained in greater detail below, the Court
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ADOPTS the R&R in its entirety, (Doc. No. 41), GRANTS Defendants’ motion to
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dismiss, (Doc. No. 37), DISMISSES Plaintiff’s third amended complaint (“TAC”)
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WITHOUT LEAVE TO AMEND, (Doc. No. 36), OVERRULES Plaintiff’s objections,
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(Doc. No. 45), and CLOSES this case.
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BACKGROUND
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The following facts are taken from Plaintiff’s TAC and construed as true for the
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limited purpose of resolving this motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235,
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1247 (9th Cir. 2013).
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On August 12, 2015, Plaintiff was transported by Defendants from Calipatria State
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Prison to J.F.K. hospital in the city of Indio, California for a physical therapy appointment.
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(Doc. No. 36 at 3.) Plaintiff suffers from lower back issues. (Id.) While traveling to his
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appointment, Plaintiff was placed in ankle restraints, waist chain restraints, handcuffs, and
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a “black box” that locked Plaintiff’s handcuffs to his waist chain. (Id.) Due to all of these
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physical limitations, Plaintiff was unable to fasten his seat belt. (Id.) As a result, Plaintiff
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asked Defendants for their assistance. (Id.) However, Defendants refused to assist Plaintiff
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stating: “No you’ll be alright.” (Id.)
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During Plaintiff’s transport, while traveling on the freeway, Plaintiff claims that
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Defendants were driving faster than other vehicles and were continuously changing lanes.
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(Id.) At one point, Defendants suddenly slammed on the breaks causing Plaintiff to be
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thrown forward and to slam into the metal security divider that separated him from
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Defendants. (Id. at 3–4.) As a result, Plaintiff hit his head and injured his back. (Id. at 4.)
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Plaintiff informed Defendants that he had been hurt, however, they continued to drive to
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the hospital. (Id.)
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Upon arriving at the hospital, Plaintiff again told Defendants that he had been hurt.
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(Id.) Instead of seeking help for Plaintiff, Defendants stated that Plaintiff’s therapist could
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check on his injuries despite the fact that she was not a doctor. (Id.) Defendants then
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apprised the therapist that Plaintiff had been injured during his transport. (Id.) The therapist
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noted that there was a lump on Plaintiff’s head and provided him an ice pack for both his
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head and his lower back for around ten minutes. (Id.) After Plaintiff completed his therapy,
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with some difficulty, the therapist told Defendants to get him “checked out.” (Id.)
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Defendants then drove Plaintiff back to the prison, this time securing his seat belt. (Id.)
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As a result of the injuries he purportedly sustained, Plaintiff was referred to a
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neurologist. (Id.) Specifically, on December 17, 2015, Plaintiff had a consultation with Dr.
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Yoo from Tri-City Medical Center in Oceanside, California. (Id. at 5.) Plaintiff was
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ultimately diagnosed with having a degenerative disc disease on his “L4-5 and L5-51” disc
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with annular fissures and disc protrusion. (Id.)
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Plaintiff filed his complaint on August 29, 2016. (Doc. No. 1.) Thereafter, on
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December 1, 2016, Plaintiff was granted leave to proceed in forma pauperis. (Doc. No. 5.)
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On February 6, 2017, Plaintiff filed his first amended complaint. (Doc. No. 7.)
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On February 28, 2017, the Court issued an order sua sponte dismissing the claims
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against Defendants. (Doc. No. 22.) Specifically, the Court noted that the first amended
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complaint contained allegations that were not presented in the original complaint and
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against Defendants not named in the original Complaint. (Id. at 2.) Accordingly, the Court
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provided Plaintiff the option of filing a second amended complaint. (Id. at 3.) On April 10,
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2017, Plaintiff filed his second amended complaint. (Doc. No. 23.)
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Subsequently, Defendants filed a motion to dismiss, (Doc. No. 30), which was
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granted on September 6, 2017, (Doc. No. 35). Plaintiff filed his TAC on October 4, 2017.
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(Doc. No. 36.) The instant motion, Defendants’ motion to dismiss, was filed on October
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19, 2017. (Doc. No. 37.) On March 29, 2018, Magistrate Judge Jan M. Adler filed his R&R.
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(Doc. No. 41.) The R&R required objections to be filed on or before April 16, 2018, and
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any reply to the objection be filed on or before April 30, 2018. (Id. at 11.) On April 17,
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2018, Plaintiff requested an extension of time to file his objections, (Doc. No. 43), which
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was granted, (Doc. No. 44). Plaintiff’s objections were filed on June 29, 2018. (Doc. No.
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45.)
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LEGAL STANDARD
Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district
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judge’s duties in connection with a magistrate judge’s report and recommendation. The
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district judge must “make a de novo determination of those portions of the report . . . to
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which objection is made[,]” and “may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C);
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United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of
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timely objection(s), the court “need only satisfy itself that there is no clear error on the face
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of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b) advisory
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committee’s note to 1983 amendment; United States v. Reyna-Tapia, 328 F.3d 1114, 1121
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(9th Cir. 2003).
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DISCUSSION
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The R&R recommends that Defendants’ motion to dismiss be granted without leave
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to amend. (Doc. No. 41 at 11.) Specifically, the R&R cites to the fact that Plaintiff’s
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operative complaint still fails to state a claim under the Eighth Amendment as many federal
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courts have determined that the transport of inmates without seatbelts alone does not
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amount to deliberate indifference. (Id. at 7.) Thus, the R&R recommends dismissal of the
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TAC as it “does not contain any further factual content to plausibly suggest Defendants
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were driving recklessly, traveling at unsafe speed for conditions, or ignored requests to
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slow down[.]” (Id. at 9.) Plaintiff’s objection states that his lack of legal knowledge resulted
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in his failure to articulate his claims. (Doc. No. 45 at 1–2.) Thus, Plaintiff requests another
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opportunity to amend his complaint so that he can “use the proper language and or specific
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wordings that in all fairness will describe the actual chain of events” related to his
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complaint. (Id. at 2.)
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The Court finds Plaintiff’s general objection to Magistrate Adler’s R&R has the
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“same effect as a failure to object.” Alcantara v. McEwen, No. 12-CV-401-IEG (DHB),
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2013 WL 4517861, at *1 (S.D. Cal. Aug. 15, 2013). Here, Plaintiff only requests that he
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be permitted leave to amend his complaint while citing his lack of legal skills. (Doc. No.
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45 at 1–2.) He does not attempt to demonstrate what factual allegations he can supply to
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support a plausible claim under the Eighth Amendment nor does he attempt to argue that
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the R&R’s conclusions are erroneous. Thus, Plaintiff’s “overly-general objections” are not
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proper objections that obligate this Court to review those portions of the magistrate judge’s
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R&R challenged by a party. See Reyna-Tapia, 328 F.3d at 1121.
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As to Plaintiff’s request for amendment so that he can use the “proper language or
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specific wordings,” the Court is unpersuaded. (Doc. No. 45 at 2.) In the present matter,
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Plaintiff has been given three opportunities to file amended complaints curing any pleading
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deficiencies. (Doc. Nos. 5, 7, 22, 23, 35, 36.) Despite these chances to amend, Plaintiff has
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failed to state his claim sufficiently. Moreover, the Court warned Plaintiff that if he filed a
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TAC that failed to state an Eighth Amendment claim, his case would be dismissed without
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further leave to amend. (Doc. No. 35 at 12.) Accordingly, as Plaintiff’s TAC is still
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inadequately pled, leave to amend is not warranted.
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CONCLUSION
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For the reasons stated above, the Court GRANTS Defendants’ motion to dismiss
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WITHOUT LEAVE TO AMEND, (Doc. No. 37), ADOPTS Magistrate Judge Jan M.
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Adler’s R&R in its entirety, (Doc. No. 41), and OVERRULES Plaintiff’s objections, (Doc.
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No. 45). The Clerk of Court is DIRECTED to CLOSE this case.
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IT IS SO ORDERED.
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Dated: September 4, 2018
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